The perfect is the enemy of the good

I published this article in the Journal of Slavic Military Studies back in 2002: it is a comparative discussion of the relationship of the Serbs and the Croats to the Partisan movement, with some reference to the other Yugoslav nationalities as well. My knowledge and understanding of the question have, of course, advanced since then, but my conclusions have not significantly changed. The article has now been republished by Balkan Witness.

The Titoist regime in Yugoslavia encouraged the belief that all Yugoslavs participated in an equal manner and to an equal degree in the Partisan movement and that they did so on a homogenous all-Yugoslav basis. Since the late 1980s this Titoist interpretation has been challenged by Serb and Croat nationalists seeking to expropriate the legacy of the Partisan movement for their respective national traditions while condemning the Communist ‘betrayal’ of their respective national interests. Although this involves the substitution of new nationalist historical myths for the older Titoist myth, the process has nevertheless revitalized a previously moribund historiography, opening up issues that were once ignored or taboo. The three conflicting claims – that the Partisans were a Serb movement; that they were a Croat movement; and that they were a genuinely multinational all-Yugoslav movement – paradoxically each holds a kernel of truth. The Partisan movement was a genuinely multinational movement but the roles played in it by the various Yugoslav nationalities were not equivalent. Contemporary Serb and Croat nationalists have borrowed aspects of the Partisan legacy that support the view that the movement was ‘theirs’ while treating its ‘un-Serb’ or ‘un-Croat’ aspects as evidence that ‘their’ movement was hijacked or betrayed by the other.

Review of Nevenko Bartulin, The Racial Idea in the Independent State of Croatia: Origins and Theory, Brill, Leiden and Boston, 2014

Almost anyone who has followed events in the former Yugoslavia since the war of the early 1990s is likely to be aware of who the Ustashas were, and to know that they carried out genocide against the Serb, Jewish and gypsy populations of their puppet ‘Independent State of Croatia’ (NDH), under the leadership of Ante Pavelic in the period 1941-1945. Yet scholarly understanding of this genocide is still in its infancy. There is no serious general explanatory history of this genocide in the English language, and while a wealth of respectable works on the topic have been produced by native historians in the former Yugoslavia, these have almost invariably tended to prioritise the description and cataloguing of crimes over analysis and explanation. In recent years, serious contributions dealing with particular aspects of the Ustasha question have been made by historians writing in the English language such as Tomislav Dulic, Mark Biondich and Esther Gitman, but it is no exaggeration to say that our scholarly understanding of the Ustasha genocide is considerably behind our understanding of the Rwandan genocide, even though the latter occurred a half century later.

Part of the problem is that historians who touch upon the subject have often seemed mesmerised by the sheer horror of the Ustasha regime and its deeds, to the point where their treatment of them has reflected outrage and condemnation rather than the pursuit of intellectual understanding. This, it should be said, is characteristic of much writing on the wars of the 1990s and the Milosevic and Tudjman regimes as well. Nevenko Bartulin’s new book focuses, once again, on a particular aspect of the topic; in this case, the origins and nature of Ustasha racial ideology. One of the strengths of his approach is that he sets out to explode many of the clichés that have bedevilled our understanding of the Ustasha question, but from a rigorously objective standpoint, untainted by any clear ideological or political bias of his own. Bartulin is unsparing in his discussion of nineteenth- and twentieth-century thinkers and ideologists of all ideological persuasions, whether Croatian- or Serbian-nationalist, pro- or anti-Yugoslav, including not only the Ustashas themselves but such key figures of Croatian history as Ante Starcevic, Josip Juraj Strossmayer, Stjepan Radic and others, all the way up to the Communists of Josip Broz Tito, whose ideology did not mark such a clean break with what had gone before as might be expected.

Bartulin challenges both the idea that the Ustasha ideology was primarily Catholic-sectarian in inspiration, and the idea that it was a copy of Nazi ideology. Instead, he stresses its origins in native Croatian racial thinking going back to the nineteenth century. Paradoxically, while the father of integral Croat nationalism, Ante Starcevic, had slipped into overt anti-Serb racism at times, he had primarily been a civic nationalist; it had been the Yugoslavist-nationalist thinkers who had pioneered racial thinking among Croats, from which Ustasha anti-Yugoslav racial thinking emerged – both as heir and as reaction. Serb-oriented Yugoslavist thinkers like Jovan Cvijic believed in a common Dinaric racial identity of the Yugoslavs, in which the ‘Serbian type’ was the ideal, core component that could assimilate the rest; conversely, anti-Yugoslav Croatian race theory also drew upon the idea of a Dinaric racial ideal, but counterpoised it to a non-Dinaric Serbian ‘other’.

Racial Yugoslavism also formed the basis of the ideology of the Croat Peasant Party of Stjepan and Antun Radic. Bartulin quotes the Peasant Party’s official programme: ‘We Croats consider Serbia, Montenegro and Bulgaria as our national states’. The Radic brothers had upheld the concept of ‘a-Semitism’, which meant excluding the non-Slavic Jews from the Croat national movement and from the idea of a racially Slavic Croat nation (but supposedly without active hostility to the Jews in the manner of anti-Semitism), and the Ustashas drew upon this legacy to justify their own much more extreme anti-Jewish ideology. The Ustasha regime celebrated the Radic brothers as national heroes, but not Josip Frank – leader of the anti-Serb Pure Party of Right, traditionally viewed as the precursor to the Ustasha movement – because he was Jewish. The Yugoslav Communists who defeated the Ustashas in the war of 1941-45 also celebrated the Radic brothers as Croat national heroes, and they too embraced a national ideology based upon racial pan-Slavism, but this time directed against the Germans and Italians, which involved ethnic cleansing and persecution of Yugoslavia’s German and Italian minorities following their victory.

Nevenko Bartulin

Murderous and genocidal as it was, Ustasha ideology was not as absolutely racist as its Nazi counterpart. Jews and gypsies (except the so-called ‘white gypsies’) were considered racially alien and subject to racial laws modeled on the Nazis’ Nuremberg laws, though a small minority of Jews were declared ‘honorary Aryans’, so spared persecution. But because the Ustashas considered the Serb inhabitants of Croatia and Bosnia-Hercegovina to be a racial mixture that included Croat elements, they did not entirely consider them as a group to be wholly racially alien, and their policy toward them was characterised by some flexibility. Thus, in addition to massacre and expulsion, Serbs were subject to assimilation attempts, via forced conversions to Catholicism and, subsequently, the establishment of a ‘Croatian Orthodox Church’ to replace the Serbian Orthodox Church on the territory of the NDH. There were three Orthodox generals in the NDH’s Home Guard.

Challenging the identification of the Ustashas with militant Catholicism, Bartulin argues that they were in fact not hostile to Orthodox Christianity as such, merely to the presence of a Serbian church on NDH territory, and were genuinely philo-Islamic. The Bosnian Muslims were celebrated as among the racially purest of Croats; Pavelic was ready to anger Catholic opinion by establishing a mosque in Zagreb. Nevertheless, the Ustasha regime preferred to force Serbs to convert to Catholicism rather than Islam or Protestantism, for fear of strengthening the Muslim autonomist movement and Volksdeutsche community respectively. Bartulin therefore stresses the pragmatic nature of the Ustashas’ use of Catholicism, though as his study focuses on the Ustasha leadership and intelligentsia, it does not consider the frequently genuinely Catholic-sectarian and anti-Muslim character of Ustasha activity at the local level in Bosnia-Hercegovina.

Though Bartulin’s book may be somewhat too monographic to appeal readily to the general reader, anyone interested in the former Yugoslavia would benefit from reading his exercise in cliché-busting. With all the lazy binaries – Serb and Croat nationalist; pro- and anti-Yugoslav; pro- and anti-Communist – it is refreshing to read a work that stresses just how many common assumptions were shared by the various ideological currents and political groups; even by those that were mortal enemies.

[…]Prevented by Congress, NATO allies or its own disinclination from putting pressure on either side, the Clinton Administration [in autumn 1994] hinted at still more concessions both to the Bosnian Serbs and to Serbia in the hope of coaxing them to end the war. Up until the UN-hostage crisis of late May 1995, Washington was offering to lift sanctions against Belgrade if the latter recognized Bosnia and Croatia. Throughout the Bihac crisis, the Clinton Administration remained officially opposed to a confederation between the Republika Srpska and Serbia, according to officials in the State Department. On 29 November, leading US Contact Group member Charles Thomas told Bosnian leaders in Sarajevo that the United States did not support such a confederation. Yet that very day, Perry stated that ‘One thing that would be considered is allowing a federation between Bosnia Serbs and Serbs [of Serbia].’ Galbraith had in March 1994 spoken of the Federation of Bosnia-Hercegovina as a step towards the reunification of Bosnia through its eventual inclusion of the Serb-held areas. McCurry now, in November, spoke of the Federation as a precedent for Bosnia’s partition, suggesting a ‘federated formula’ for the Bosnian Serbs modeled on the links between Bosnian Croats and Croatia established through the Washington Agreement. Lake euphemistically put it to Alkalaj that the parties to the conflict should be ‘free to negotiate their own alliances.’ Christopher, when asked whether a concession to the Bosnian Serbs of this kind did not amount to ‘appeasement,’ argued that it ‘wouldn’t be appeasement’ if it were ‘agreed to by the parties,’ perhaps forgetting that the Czechs had ‘agreed to’ the Munich Agreement of 1938.

Such rhetorical twists reflected the Clinton Administration’s attempts to pursue its own conciliatory policy while paying lip service to the harder line demanded by Congress. Contrary to previous promises, in early December US ambassador to Bosnia Charles E. Redman did indeed offer a confederation between the Republika Srpska and Serbia to Karadzic during talks at Pale. The memorable oxymoron used by Administration officials to describe the main aim of US policy, to ‘preserve Bosnia as a single state within its existing borders while providing for an equitable division of territory between the Muslim-Croat Federation and the Bosnian Serb entity,’ encapsulates this approach. The Administration not only ‘talked unity and acted partition,’ as one Senate source told the The Christian Science Monitor, but it talked unity and talked partition in one and the same sentence. This principle was to be enshrined in the text of the Dayton Accords, which stated ‘Bosnia and Herzegovina shall consist of the two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska’ and ‘The Entities shall have the right to establish special parallel relationships with neighboring states consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina.’

Contradictory statements of policy by different individuals within the Clinton Administration, or indeed by the same individual at different times, were not purely a reflection of cynicism on the part of the leadership. They reflected also genuine differences between different branches of the Administration. Harris and Walker, two State Department officials who resigned in protest at what they saw as Clinton’s betrayal of Bosnia, have described the State Department before the policy shift as sympathetic towards the Bosnians, cynical of the Administration’s policy and supportive of strong intervention and a lifting of the arms embargo. According to them, officials in the Pentagon were more opposed to military intervention, though Walker argued that this derived more from obedience to Clinton than to their own convictions. According to Harris, top officials in the Pentagon would have been comfortable with a Serb victory that would have brought the war to a quicker conclusion, whereas the working levels of the State Department feared this would result in further destabilization of the region.

When we talk about solutions for Bosnia-Hercegovina, the emphasis is usually on what we would like Bosnia-Hercegovina to look like. This is very easy to say. I and many others would like Bosnia-Hercegovina to be a sovereign, unitary state of all its citizens, regardless of nationality. However, it is much more difficult to see how to achieve this. In this presentation, I am going to talk about a much more modest goal: the development of a Bosnian resistance strategy to prevent a greater misfortunate from befalling Bosnia-Hercegovina. And that will take the first steps toward restoring the state. I won’t engage in false optimism; this will be an analysis of the reality of the situation with a hard-headed analysis of what can realistically be achieved.

Bosnia-Hercegovina’s problems do not need explaining – we are all familiar with them. Bosnia-Hercegovina as a state exists only formally; on paper; in reality, Bosnia-Hercegovina has no functioning state. Bosnia-Hercegovina is divided into two entities. Of these, the Serb entity is the more homogenous one. It is the principal obstruction to Bosnia-Hercegovina’s functioning as a state. The Federation – some once expected – might have acted as the core around which Bosnia-Hercegovina could be reintegrated. So people have viewed the RS as the ‘bad’ entity and the Federation as the ‘good entity’. In fact, they are both bad entities, and the Federation is as much part of the problem as the RS. The Federation is crushed under the weight of its bureaucracy. Its division into cantons weakens both the administration and the economy. The Federation is plagued by the conflicts between Bosniak and Croat politicians. But reform of the system is impossible. It’s impossible to reform the state, because this would require consensus between the three nationalities. But the RS politicians will always veto any reforms that would make the state function. Reform of the Federation is also difficult. The Croats already feel marginalised within the Federation and view the system of cantons as a guarantee for at least a degree of autonomy.

The status quo is unsustainable

At one level, the status quo represents an acceptable compromise, or lesser evil. Bosniaks, and those Serbs and Croats who believe in a united Bosnia-Hercegovina, get at least the illusion of a united Bosnia-Hercegovina. They don’t get a real state, but they get a unified country that exists at least on paper. In return, those Serbs who don’t identify with Bosnia-Hercegovina get an entity with most of the attributes of statehood, but without the full right to secede. Those Croats who don’t identify with Bosnia-Hercegovina are perhaps the least satisfied, but they aren’t strong enough unilaterally to change the system. The status quo, some might feel, is better than any alternatives. However, there is reason to believe that it is unsustainable.

An entity such as the RS has a natural tendency to seek ever greater independence, and eventually full secession. That would be true even if Bosnia-Hercegovina were a relatively rich and successful country like Belgium, Spain or the UK, where there are strong tendencies toward separation in Flanders, Catalonia and Scotland. But the Serb political classes in the RS don’t just want greater autonomy. They wish to negate Bosnia-Hercegovina. Among the ordinary Serb people, the war has created a high level of bitterness that militates against acceptance of Bosnia-Hercegovina. International circumstances can give them hope that they will eventually be able to establish an independent Republika Srpska. Russia is acting as a Great Power in opposition to the European Union and NATO. The Russians have shown in Georgia and in Ukraine that they are fully prepared to dismember other European states, through support for secessionist regions, in opposition to Western wishes.

In the RS, Dodik has established himself as Russia’s ally through supporting Putin’s annexation of Crimea. If and when Dodik leaves office, the next president of Republika Srpska may pursue the same policy. It is entirely possible to envisage a scenario whereby the RS eventually secedes from Bosnia-Hercegovina, with support from Russia and Serbia. Right now, Serbia must behave itself in order to gain entry into the EU. But when Serbia joins the EU eventually, it will no longer need to behave well. The EU has shown that it won’t restrain a member that behaves badly toward a non-member. We have the example of how Greece and Bulgaria treat Macedonia. Or the example of five EU member states that won’t recognise Kosovo – three of them are recent members. Croatia joined the EU, and immediately the Croatian right-wing launched chauvinistic campaigns against gay marriage and the Cyrillic alphabet.

The likelihood is that Serbia will join the EU before Bosnia. So there will be a situation where the two states that tried to partition Bosnia-Hercegovina in the 1990s – Serbia and Croatia – will be in the EU and Bosnia will be outside. Should Serbia and Croatia then try again to partition Bosnia, it is difficult to see how the outside world will stop them. Even if Bosnia-Hercegovina joins the EU alongside Serbia, this will not necessarily help defend the country. Cyprus is in the EU, but the EU is not doing anything to try to end the partition of Cyprus, because Turkey is too strong. And Turkey does not even have the advantage of EU membership. If Bosnia-Hercegovina, Serbia and Croatia are all inside the EU and the RS secedes, the EU will find it very difficult to enforce sanctions against the RS. So Bosnians should be prepared for a possible new assault on Bosnian territorial integrity, involving the secession of the RS – particularly if and when Serbia joins the EU. So it is not necessarily a choice between the status quo and something worse. It may be a choice between an independent RS in its existing borders and something else.

Change won’t come from outsideIn seeking to prevent this happening, and looking for a solution, there are two places we can look: from within the country of Bosnia-Hercegovina, and from the international community. Of course, we cannot ignore the outside world. International opinion is always crucially important. The Serb failure to achieve their full goals in the war of the 1990s, and the NATO bombardment of 1995, occurred in part because the Serbs lost the propaganda war – particularly following the Srebrenica massacre. So any attempt at change in Bosnia-Hercegovina has to be made with international public opinion in mind. But change will not come from outside. The wars of the 1990s demonstrated the unwillingness of the Western alliance to defend Bosnia-Hercegovina. Since then, the Western alliance has shown that it will not act to defend the territorial integrity of Georgia or Ukraine from Russian aggression. The excuse has been that these countries are not NATO members, so there is no legal obligation. Bosnia-Hercegovina is also not a NATO member.

So we cannot rely on the West to defend Bosnia-Hercegovina from the RS’s secession, backed by Russia, Serbia and maybe Croatia. Particularly if Serbia is already in the EU. There is no point expecting the international community to bring about a ‘Dayton 2’, and to re-establish a functioning Bosnian state. I recently visited Washington DC, where I met with State Department officials, and they made it clear that the US has no interest in any kind of Dayton 2. They also made it clear that they would only accept change on the basis of consensus. But positive change cannot be on the basis of consensus because of the Serb veto.

The high point of international intervention in Bosnia-Hercegovina, via the Office of the High Representative was in the years of Paddy Ashdown, up to 2006, when significant steps were taken to reintegrate Bosnia-Hercegovina. But since then, the momentum was lost, and the international community effectively stopped rebuilding Bosnia. So the process went into reverse, as Milorad Dodik dismantled the country again. Today the international community is happy provided Bosnia-Hercegovina remains quiet and is not a source of regional instability. This is a small-minded era in European politics. Public opinion in many European countries is increasingly hostile to the European Union. Anti-immigrant racism is very strong, and so is Islamophobia. Resistance to active foreign policy was revealed when the Western states refused to intervene to protect the people of Syria. So this is not a good era to expect constructive Western action to rebuild Bosnia. Only in the event of a major new crisis breaking out over Bosnia would the West feel moved to intervene – as was the case in 1992-95.

Change from withinSo change in Bosnia-Hercegovina can only be expected to come from within. The question is how to build a movement for change that embraces Bosnians of all nationalities – Bosniaks, Serbs, Croats and others. Of the three principal Bosnian nationalities, only Bosniaks are overwhelmingly committed to Bosnia-Hercegovina as their homeland. Only a small minority of Serbs, and a slightly larger minority of Croats, identify with Bosnia-Hercegovina as their homeland. This was not always the case. Historically, Serbs and Croats identified with Bosnia-Hercegovina as their homeland in much greater measure than they do today. Before the 1990s, a political mobilisation based on shared Bosnian patriotism, embracing Bosniaks, Serbs, Croats and others, was still a possibility.

Serbs could go either way: toward Bosnian patriotism or toward Great Serbianism – or to a combination of them. But the effects of the war, and in particular the creation of a Bosnian Serb entity, have destroyed Serb identification with the common Bosnian homeland.

In effect – regardless of the extent of the brutality and genocide involved – there now exists a Bosnian Serb nation-state: Republika Srpska. Most Serb inhabitants of the RS identify with it and will not accept the loss of its autonomy. Of course, it’s possible to engage in bridge-building between people in the Federation and those in the RS, and that is positive. But this is not very different from what you would do with citizens of a foreign country, like Serbia or Croatia. Politicians, intellectuals and public figures from the Federation can establish links and projects with those from the RS, as they can with those from Serbia and Croatia. But good relations are not the same as national unification.

As regards the Croats, things are less bad because there is no Croat entity. My feeling is that if the RS could somehow be reintegrated with Bosnia-Hercegovina, Croats could accept the common homeland. But coexistence in the Federation as the smaller partner with the Bosniaks cannot have solid acceptance among the Bosnian Croats. As I said before, the Federation is not the solution; it is part of the problem. The dilemma is, that a reform that might lead to greater Croat acceptance of the Bosnian state – i.e. a third entity – would accelerate the division of the country. A Croat entity would pursue the same separatist policy as the Serb entity. With a Serb and a Croat entity, Bosnia-Hercegovina probably would not last long as a unified state. But the two-entity system alienates the Croats from Bosnia-Hercegovina.

What is to be done ?
It is not for me, as a foreigner, to lay down a precise resistance strategy for Bosnia-Hercegovina, so I’ll just say a few words for further consideration. When I talk here of Bosnians, I mean those citizens of Bosnia-Hercegovina who view the country as their homeland. Mostly Bosniaks, but also Serbs, Croats and others who identify with Bosnia-Hercegovina. Bosnians cannot rely on the international community to defend Bosnia-Hercegovina. So they must be prepared to defend it themselves. That means that if and when the RS does secede, Bosnians must be prepared – if necessary – to respond militarily. If nothing else, the readiness and ability to fight a war to defend Bosnian territorial integrity may act as a deterrence to any attempt at secession. It may also strengthen the hand of those in the international community who support a unified Bosnia-Hercegovina, against those who are prepared to let it break up. For this, it is important to have at least some elements of statehood capable of mobilising national resistance.

It can be valuable to learn from the experience of the 1990s. At the start of the war in 1992, there were two bases for resistance: there were the official organs of the republic, including the Territorial Defence and the MUP/police. But these were difficult to mobilise for defence, since they were partly controlled by Serb and Croat nationalists – agents of Belgrade and Zagreb. Drago Vukosavljevic, commander of the Territorial Defence, was a supporter of the SDS. Jerko Doko, Minister of Defence, was a politician of the HDZ. So Bosnia-Hercegovina’s official organs of defence were paralysed. On the other hand, there was also the Patriotic League. But this was essentially a Bosniak militia, and was not able to mobilise Serbs and Croats to defend a united Bosnia. This dilemma – between a Bosnian and a Bosniak resistance orientation still remains. The resistance should always be in the name of all Bosnian citizens, but realistically it will be Bosniak-majority.

The second dilemma is: how do you prepare to resist without accelerating Serb and Croat secession ? Reforming the Federation is a way of beginning the process of reform in a way that cannot be blocked by the Serb veto. But how do you reform the Federation in a manner that’s acceptable to the Croats, but without empowering Croat separatism ? If we abolish all the cantons, then that is unacceptable for many Croats. But if we reduce the number of cantons to two, then there is a danger that the cantons become entities, and we end up with a Croat entity that pursues the same separatist policy as the Serb entity. I think it is necessary to reduce the number of cantons – maybe to five. In any case, there should remain a central canton in the Federation based on Mostar, that would be ethnically mixed.

But a larger canton including, at least, Sarajevo, Tuzla, Zenica, Travnik and other towns, could act as the heart of a functioning Bosnia-Hercegovina, as the centre of national energy. Here, solid, functioning Bosnian national institutions could be build. Such a large central canton could prepare and mobilise an effective national resistance in the event of a new conflict arising from any attempt at secession. Bosnian citizens need to be psychologically prepared to fight, if necessary, to defend Bosnian unity. Such psychological preparation was lacking in 1992. With a more efficient administration, with a lighter bureaucracy and without any national key, such a large central canton could act as a more attractive magnet for the Bosnian periphery.

This could also mark the start of a more general process of change. It’s important to begin the process of constitutional change; to get the ball rolling. At the very least, such a strengthening of the heart of Bosnia-Hercegovina could put the Bosnians in a stronger position to react to any new state crisis. And this could serve as a deterrent to any attempt to break up the country altogether. And when the international community would see that Bosnians are ready to act independently and to resist, they will be less likely to appease those who seek to divide Bosnia-Hercegovina.

Based on a speech given at Krug 99, where this text was originally published.

This interview with Marko Attila Hoare was conducted by Bisera Fabrio for Jutarnji list and published in Croatian on 20 June 2014

Who started the war ?

World War I was a conflict with multiple layers. It began as a Balkan conflict between the two Balkan powers, Austria-Hungary and Serbia, but quickly expanded to become a war of Germany against the Franco-Russian alliance, after which other Great Powers and Balkan powers joined the war on one side or the other. So it did not have one single aggressor. The Sarajevo assassination was engineered by leaders of the extreme-nationalist, terrorist Serbian organisation ‘Unification or Death’, also known as the ‘Black Hand’, which must bear responsibility for provoking the Austro-Hungarian declaration of war on Serbia. However, the assassination did not reflect the policy of the Serbian government, and Vienna’s decision to go to war against Serbia was an expression of long-standing Austro-Hungarian imperialist plans. Austria-Hungary and Serbia each had predatory, expansionist designs against each other. However, Austria-Hungary, as the much bigger power, whose leadership officially decided on war, bears the greater responsibility for the outbreak.

Was the fatal shooting by Gavrilo Princip the true cause or simply the formal pretext for a great war that had long been ‘cooking’ ?

The Sarajevo assassination was the spark for the outbreak of a conflict that would almost certainly have happened anyway. However, it was not accidental that the conflict broke out over an event in the Balkans. Austria-Hungary had for decades sought to control Serbia, but Serbia had in the years before 1914 – particularly since 1903 – increasingly moved away from Vienna’s influence. Serbian leaders had long-term plans to ‘liberate’ or annex South Slav territory in Austria-Hungary, and the Black Hand supported terrorist acts like the Sarajevo assassination as part of a deliberate expansionist strategy. Austria-Hungary, for its part, sought to extend its imperial influence southward into the Balkans and viewed Serbia as lying in its natural path for expansion. Beyond this, Germany viewed the Balkans and the Ottoman Empire – the Near East – as a key sphere of influence, after it had largely been shut out of other areas for imperial expansion by the British and French. Russia viewed the possibility of Austro-German expansion into the Balkans as a mortal threat. France competed with Germany for influence over the Balkan states, while Italy competed with Austria-Hungary for influence over the Albanian lands. So the Balkans and Ottoman Empire were a key area of dispute – probably the most important area of dispute – between the Great Powers. Consequently when the assassination crisis broke out in June 1914, neither Austria-Hungary nor Germany nor Russia felt it could retreat.

Was it possible that the citizens of Austria-Hungary, that early summer in 1914, really did not expect any kind of military conflict, let alone a long war that would bring down the Monarchy ?

The citizens or subjects of the Habsburg monarchy were divided over how they viewed the crisis that erupted in June 1914. The war party, represented most prominently by the joint Austro-Hungarian foreign minister Count Leopold von Berchtold and by Chief of General Staff Conrad von Hoetzendorf, was determined to attack Serbia following the assassination, but they did not foresee that this action would result in a general European war lasting over four years, and they certainly did not predict that the war would result in the Habsburg Empire’s collapse. Others, particularly the Hungarian prime minister Istvan Tisza, hoped after the assassination that war could be avoided. Ironically, Hungarian resistance to a Habsburg war against Serbia helped to delay its outbreak, so that Vienna lost the chance to occupy Serbia quickly and present the other Great Powers with a fait accompli. This ensured that when war did break out, it would not remain localised between Serbia and Austria-Hungary, but become a general European war.

What did Serbia actually want ? What were its intentions toward Bosnia ?

Bosnia had formed a key goal of Serbian expansionist plans ever since Ilija Garasanin’s (in)famous ‘Plan’ (Nacertanije) in 1844. Following the Austro-Hungarian occupation of Bosnia-Hercegovina in 1878, those Serbian statesmen who favoured collaboration with Vienna – most notably Prince, later King Milan Obrenovic – chose to disregard Bosnia-Hercegovina and concentrate on southward expansion. But Bosnia-Hercegovina remained a long-term goal for nationalist Serbians, and the change of regime in Serbia in 1903, when King Aleksandar Obrenovic was murdered and replaced by Petar Karadjordjevic, brought to power those who certainly intended Serbia’s eventual expansion westward. This meant, firstly, the People’s Radical Party under Nikola Pasic, and secondly, the extreme nationalist army officers who had carried out the murder of King Aleksandar and who went on to found ‘Unification or Death’ in 1911. When Austria-Hungary annexed Bosnia-Hercegovina in 1908, Pasic called for preparations for war, and something of a war psychosis gripped Serbia, with the formation of the ‘National Defence’ (Narodna Odbrana) organisation to wage guerrilla warfare in Bosnia-Hercegovina. However, when he subsequently became prime minister in 1912, Pasic pursued a more moderate policy toward Austria-Hungary, since he was focused on Serbia’s southward expansion against the Ottomans. After the Balkan Wars, Pasic wanted a period of peace to enable Serbia to assimilate the territory in Old Serbia (Kosovo) and Macedonia it had taken. It was the Black Hand, whose leading officers Dragutin Dimitrijevic-Apis and Vojislav Tankosic were behind the assassination, who were the real war-mongers on the Serbian side: they supported terrorism and aggression in Bosnia-Hercegovina, against Montenegro’s King Nikola, against Bulgaria, etc., as part of a consistent policy.

What was the state of inter-religious and interethnic relations in Bosnia-Hercegovina in 1914 ?

Inter-religious and interethnic relations in Bosnia-Hercegovina in 1914 were better than they would later be within the Yugoslav kingdom. Serbs and Muslims were divided by the question of land reform, since the majority of Orthodox Serb peasants in Bosnia-Hercegovina remained subject to Muslim landlords. Croats and Muslims were divided over the issue of Catholic proselytising. However, there was also a general degree of solidarity among members of the Serb, Croat and Muslim elites. Conservative Serb and Muslim leaders had collaborated in their demands for church and school autonomy from the Habsburg regime, and for Bosnian autonomy. Some of the more liberal Bosnian politicians favoured inter-religious and inter-ethnic collaboration on a pro-Yugoslav basis against the regime. The actions of Gavrilo Princip and his fellow assassins were those of an extremist fringe, and were condemned by mainstream Bosnian Serb political and religious figures. Although the assassination provoked a wave of attacks on Serb properties in Sarajevo, these were condemned by Catholic Archbishop Josip Stadler and by Reis ul-Ulema Dzemaludin Causevic. Yet even Princip’s Young Bosnia movement encompassed Croats and Muslims as well as Serbs. Inter-ethnic and inter-religious relations in Bosnia-Hercegovina would deteriorate sharply as the result of the establishment of the Kingdom of Serbs, Croats and Slovenes.

What was Young Bosnia ? Was it a Serb conspiratorial group, a wing of the Black Hand or an authentic Bosnian illegal organisation ?

Young Bosnia was an ill-defined, loose network of Bosnian student radicals. It was numerically dominated by Serbs and many of its supporters were at least unconsciously inspired by the tradition of Serb Orthodox Christianity. However, its political goals bridged the gap between Great Serb nationalism and pro-Yugoslav ideas, and its adherents came to support common South Slav unification based on the overcoming of religious and ethnic differences between Serbs, Croats and Muslims. Consequently it was able to recruit Croats and Muslims as well as Serbs. Young Bosnia was an indigenous Bosnian movement, but it was co-opted by the Black Hand which sought to use it to advance its own expansionist goals. The Black Hand organised a guerrilla training school in Prokuplje in Serbia that prepared young people from Bosnia-Hercegovina to engage in terrorist activities. The assassination of Archduke Franz Ferdinand, engineered by Apis and Tankosic and carried out by Bosnian Black Hand agents – Princip in conjunction with others – represented the culmination of these activities. The assassination cannot be understood unless both the indigenous Bosnian element (Young Bosnia) and the external Serbian element (Black Hand) are both taken into account together.

Gavrilo Princip was in the period of Tito’s Yugoslavia treated as an extraordinary historical figure; as a revolutionary who initiated the emancipation of the Yugoslav peoples; the forerunner of the people’s heroes of the Second World War. Today he is, at least in Croatia, looked upon differently – some consider him a murderer and terrorist, and others an exponent of Serb nationalism…

He is a figure that understandably divides Serbs, Croats and Bosniaks today. His political goals stood on the border between Great-Serb nationalism and Yugoslavism; he was very much Serb in his background, but he came to embrace a form of South Slav unification that stressed unity between Serbs, Croats and Muslims. He expressed violent hatred for the Sarajevo carsija, that from a contemporary perspective reminds us of Radovan Karadzic. However, his patriotic hatred was directed primarily against the foreign, Habsburg occupier, rather than against Croats or Muslims. His assassination set off a chain of events that had disastrous consequences for the South Slavs. Serbia was militarily crushed by the Central Powers in World War I, and only ended up on the winning side by luck: it was the US’s intervention in World War I that led to an Allied victory, in which Serbia was freed from occupation. The establishment of Yugoslavia was disastrous for Bosnia-Hercegovina’s peoples, and to a lesser extent for Croatia’s: it led to the Chetnik and Ustasha genocides of 1941 and to Milosevic’s and Karadzic’s genocide in the 1990s. We can reasonably view the assassination, leading to the establishment of Yugoslavia, as a historic wrong turn for the South Slav peoples of the Habsburg Empire. Some Young Bosnia supporters became notorious Chetniks in World War II. But it is important to remember that Princip was not Karadzic; he did not plan or engage in genocide.

Was the assassination of the heir to the throne Franz Ferdinand a terrorist act, as the Austro-Hungarian authorities understandably treated it at the time and as it is today treated by some historians, or was it in fact a patriotic act, as it is treated by the majority of Serb and pro-Serb historians ? If it was patriotic, what kind of patriotism was it ? Serb ? Bosnian ?

The assassination was undoubtedly a terrorist act, and it enjoyed no general support or democratic sanction among the Bosnian population – not even among the Serb population. So it cannot be considered as a legitimate act of a genuine national-liberation movement. But the assassins viewed themselves as patriots, and were undoubtedly sincere in their belief that they were acting in the best interests of their people. They did not have clearly worked out political goals – they were very young people, largely teenagers. They supported the liberation and unification of the South Slavs in general terms. Their patriotism was of a kind that blended Serb patriotism, Serbo-Croat patriotism, Bosnian patriotism and Yugoslav patriotism.

Was the goal of Young Bosnia to ‘expel’ Austria-Hungary from Bosnia-Hercegovina, which would then become an independent state, or to annex Bosnia to Serbia ?

Young Bosnia was a loose network with an imprecise membership – it was not a proper political organisation, and it did not have a precise programme. Its members broadly believed that Serbs, Croats and Muslims were the same nation, and they broadly sought Austria-Hungary’s expulsion from the South Slav lands so that these could be united with Serbia in a common South Slav state. In general, Young Bosnia’s members believed that Bosnia-Hercegovina belonged neither to Serbia nor to Croatia, but to both equally. At his trial, assassin Vasa Cubrilovic described his identity as ‘Serbo-Croat’, while Trifko Grabez said ‘I was not led by Serbia but solely by Bosnia’.

How much did the new, post-war (1918) geopolitical picture of the Balkans influence the fact that at the end of the twentieth century a number of national states were established ?

Those who defend the Versailles settlement claim that it permitted the liberation of the subject peoples from the former European empires – particularly the Habsburg Empire – and enabled them to form their own national states. However, from the point of view of the South Slav inhabitants of the Habsburg Empire – roughly speaking, the peoples of the lands that today comprise Slovenia, Croatia, Bosnia-Hercegovina and Vojvodina – 1918 arguably resulted in the exchange of one slavery for another. In the Kingdom of Serbs, Croats and Slovenes, both Croatia and Bosnia-Hercegovina lost the parliaments and autonomy they had enjoyed in the Habsburg Empire, and relations between Serbs and non-Serbs became worse, not better. In retrospect, we can view the Yugoslav period (1918-1992) as a transitional phase on the road to independent national statehood for the Croats and Slovenes (although the Bosnian question remains unresolved today). The establishment of Yugoslavia on a centralised, Serbian-dominated basis in 1918-1921 made it very likely, if not inevitable, that the country would eventually break up in favour of independent national states.

Was Austria-Hungary a precursor to the European Union ?

No; Austria-Hungary was a multinational dynastic state that predated the independent national statehoods of its peoples, whereas the European Union is a multinational union built from independent nation-states. Only by freeing themselves from rule by the Austro-Hungarian, Ottoman, Russian and other empires and establishing themselves as independent states, could the European nations go on to establish something like the European Union.

What was the key cause of the break-up of the Austro-Hungarian monarchy ? The burning, militant nationalism of its various peoples or the rigid centralism of Vienna and Budapest ? We see that in contemporary Europe nationalism is rising…

Historians debate how inevitable the break-up of Austria-Hungary was; whether it might have survived had its leaders been more accommodating toward its non-German and non-Magyar peoples, or if there had been no World War I. But I believe pre-national multinational unions like Austria-Hungary and Yugoslavia ultimately had no future. As a general rule, unless a state is underpinned by a common national identity shared by most of its citizens, then it cannot survive in the face of democracy. Because people will generally want their nation to be free and independent, not to be ruled by an alien master. The question is today how many more independent nation-states will one day appear in Europe: Scotland, Catalonia, Chechnya, etc. ?

What kind of lesson can Europe today draw from the Great War ?

That the peace of Europe is best secured when the continent is organised on the basis of independent, democratic national states in which the rights of national minorities are fully respected. And when these states are united in trans-national unions or associations – political, economic and military – that provide a common framework for interaction while respecting the sovereignty of each member.

If, after a hundred years, historians from either side of the Drina cannot even agree on who started the war, let alone who was really to blame for it, how can we expect that this part of Europe will truly be stabilised politically ? It turns out that the debate over the First World War is itself the pretext for a new war, at least among historians if not politically…

The establishment of the former Yugoslav lands as seven fully-functioning, fully sovereign states – Slovenia, Croatia, Bosnia-Hercegovina, Serbia, Montenegro, Macedonia and Kosovo – and their unification within the European Union and NATO would provide the best guarantee for the region’s stabilisation. In such a case, the disputes of the past will matter less. Unfortunately, this process is stalled, and the futures of Bosnia-Hercegovina, Kosovo and Macedonia, in particular, appear uncertain. If Europe’s leaders remain unwilling to take the necessary steps to restore Bosnia-Hercegovina as a functioning state and to bring it into the EU along with Kosovo and Macedonia, then they will be responsible for any new conflict that breaks out.

Three years ago, as readers may recall, David N. Gibbs of the University of Arizona responded to my criticisms of his Srebrenica-genocide-denying propaganda tract First do no Harm: Humanitarian Intervention and the Destruction of Yugoslavia with an article published on ModernityBlog, entitled – in his characteristically hyperbolic style – ‘The Second Coming of Joe McCarthy’. What followed was a public debate in the comment boxes of the blog, in which Gibbs was comprehensively defeated on every point: he was unable to counter either my criticisms of his work, or my refutations of his criticisms of my own work. So weak, underhand and disingenuous were Gibbs’s attempts at discussion that the proprietor of the venue – where Gibbs had himself chosen to publish – graciously apologised to me personally for allowing him to post there: ‘I made a mistake by allowing David Gibbs a guest post. At the time I thought he was a reasonable academic who deserved a right of reply, however, subsequently I have had time to reflect on my poor judgement.’

I then published further articles exposing the way in which Gibbs distorted and manipulated source material to construct his fictitious narrative of the war in the former Yugoslavia. I refuted his attempt to justify Serb-nationalist territorial claims in Bosnia and his attempt to blame the break-up of Yugoslavia on a German imperialist conspiracy. I could have gone on to demolish the rest of his book as well, but that would have taken weeks of my life, and I felt I had sufficiently exposed its worthlessness as a supposed piece of scholarship. In January 2011, Gibbs admitted his inability to counter my refutations: ‘In what follows, I will make no pretense that I answer all of Hoare’s allegations, which I find impossible, given the huge quantity of his charges.’

Unable to win in a public debate, Gibbs then attempted to intimidate both me and my institution, Kingston University, in order to silence me. Out of the blue, nine months after our debate, he submitted a bogus complaint against me to my university containing fraudulent allegations. When Kingston inevitably failed to uphold his ‘complaint’, he published an attack on me, on Kingston and on my faculty dean on the far-right website Antiwar.com. He then sent increasingly threatening emails to my institution, which nevertheless continued to reject his ‘complaint’. Let us be clear on this point: despite what Gibbs insinuates, no part of his bogus complaint against me has ever been accepted by Kingston University. On the contrary, in dismissing Gibbs’s complaint, my Faculty at Kingston confirmed that my academic conduct had been impeccable.

This week, he is attempting yet again to intimidate Kingston University in the hope of silencing me, through a further bogus public complaint published on the anti-Semitic website Counterpunch .

The essence of Gibbs’s ‘complaint’ is that he is unhappy that I have I refuted much of his book. Instead of attempting to counter my arguments, he has simply restated his already refuted claims and portrayed my exposure of their fallaciousness as some sort of legitimate grievance. I am not going to waste my time re-stating points to which he was unable to respond the first time around. I have already refuted at length his wholly fantastical claim that the break-up of Yugoslavia was engineered by Germany; his wholly disingenuous claim to have engaged with existing scholarly literature by Michael Libal, Brendan Simms, Richard Caplan and others that contradicts his own arguments; his wholly spurious denial that he blames the Bosniak side for the Srebrenica massacre (I have dealt with his victim-blaming over Srebrenica twicealready); and many of his other claims.

As regards arguments to which I haven’t previously responded, Gibbs’s formal statement condemning Milosevic is little more than a disclaimer in the style of ‘I’m not a racist, but…’. For those who are not familiar with the way these people operate: they rarely deny the crimes of Milosevic and the Serb forces altogether, but usually make an opening gambit along the lines of ‘Of course Milosevic and the Serb forces were guilty of terrible atrocities, but…’ before proceeding to regurgitate the Great Serb propaganda narrative putting the blame for the war on the Croats, Bosniaks and Western imperialism. There is little that is original in Gibbs’s version of this narrative; it has previously been presented in book form by Diana Johnstone, Michael Parenti, Kate Hudson and others, and before that via magazine format by the people behind Living Marxism.

Of course Gibbs does not devote much space in his book to explaining how Milosevic ‘made a central contribution to Yugoslavia’s demise’. No mention of the fact that Milosevic and the Serbian and JNA leaderships were the principal separatists in the break-up of Yugoslavia; that Milosevic’s ally Borisav Jovic recorded in his diary that he, Milosevic and the JNA’s Veljko Kadijevic agreed in June 1990 to work for the forcible expulsion of Slovenia and a dismembered Croatia from Yugoslavia; that Kadijevic in his published memoirs admits that the JNA was working from this time for the ‘peaceful’ exit of Slovenia and Croatia from Yugoslavia; that Serbia’s constitution of 28 September 1990 declared: ‘The Republic of Serbia determines and guarantees: 1) the sovereignty, independence and territorial integrity of the Republic of Serbia and its international position and relations with other states and international organisations’; that the following month Serbia imposed customs duties on imports from Croatia and Slovenia; that on 16 March 1991 Milosevic publicly announced that Serbia would no longer recognise the authority of the Yugoslav Presidency. Instead, Gibbs defends Milosevic as ‘a strong advocate of maintaining both Serbia and Yugoslavia as socialist’ (Gibbs, p. 65). And he makes clear that he blames the war in Croatia on the Croatian side: ‘The Croatian war had its origins with the nationalist forces that were unleashed during the election campaign of 1990, when Franjo Tudjman’s HDZ party came to power.’ (Gibbs, p. 87). And so on and so on.

Contrary to what Gibbs claims, I have never insinuated that he is ‘an extreme anti-Semite’. Gibbs pretends to deduce this supposed insinuation from my comparison of the myth that Germany brought about the destruction of Yugoslavia by engineering Croatian and Slovenian secession (a myth that he upholds) with the Protocols of the Elders of Zion. In other words, I am comparing an anti-German libel with an anti-Jewish libel, and Gibbs deduces from this that I am therefore accusing those who uphold the anti-German libel of being anti-Semitic. It really is difficult to believe that even Gibbs is quite so logically challenged that he can take his argument here seriously. Moreover, his faux outrage at the fabricated ‘insinuation’ is undermined by the fact that he has chosen to publish his latest attack in an anti-Semitic publication.

Gibbs claims ‘I have never objected to serious condemnation of Milošević’s crimes, in the media or elsewhere.’ But this is untrue. Gibbs wrote in his book: ‘Another feature of the Balkan conflict was the tendency of the Western media needlessly to exaggerate the atrocities committed by Serb armies… Atrocities committed at Serb-run detention camps were presented in sensationalist fashion, for example, and they became “extermination camps” comparable to Auschwitz. President Izetbegovic himself encouraged these interpretations. Yet, in 2003, shortly before his death, Izetbegovic conceded that “there were no extermination camps” in Bosnia. He also conceded that his previous claims to the contrary had been deliberate misrepresentations, intended to outrage Western public opinion and thus trigger Western military intervention against the Serbs.’ (Gibbs, p. 216) So Gibbs has accused the Western media of having ‘exaggerated’ Serb atrocities and presented them in a ‘sensationalist fashion’ (NB Gibbs’s claim regarding Izetbegovic rests not on any credible source, but solely on the self-serving testimony of Bernard Kouchner, who had been a minister in France’s pro-appeasement government during the war in Bosnia).

Gibbs claims ‘Another one of Hoare’s techniques is the use of faked quotations, wherein he fabricates quoted statements, which he attributes to me.’ This is another falsehood, and represents Gibbs’s desperate attempt to deflect attention away from my point-by-point refutation of his book. Here is what he writes:

‘In the above Modernityblog posting, for example, Hoare attributes to me the phrase “creating the hatred,” which he presents as a direct quotation. The implication is that in my view the Bosnian Muslims were “creating the hatred” in the Srebrenica area. In fact, this is a fake quotation. This phrase “creating the hatred” appears nowhere in any of my writings. Then in a later posting, he attributes to me the quote “created the hatred,” which once again implies that in my view the Muslims had created the hatred in Srebrenica. But the quoted phrase appears in none of my writings, and the essence of its meaning corresponds to nothing I have ever said.’

Naturally Gibbs doesn’t provide any link that would allow his readers to check whether indeed I had said what he claims. In fact, this is what Gibbs wrote in his book: ‘The Srebrenica safe area had an especially brutal history, and it was besieged by Serb forces throughout the war. It is important to note, however, that Muslim troops also behaved brutally. Especially problematic was the Muslim commander Brigadier Oric, who based his forces inside Srebrenica and conducted forays against Serb villages in the surrounding region. One UNPROFOR commander later described Oric’s activities as follows: “Oric engaged in attacks during Orthodox holidays and destroyed [Serb] villages, massacring all the inhabitants. This created a degree of hatred that was quite extraordinary in the [Srebrenica] region… [etc.]“‘ (Gibbs, pp. 153-154).

So Gibbs quoted an UNPROFOR commander as saying that the actions of Naser Oric’s Bosnian army ‘created a degree of hatred that was quite extraordinary in the [Srebrenica] region…’. Gibbs treated this claim uncritically, using it to substantiate his attribution of blame for the Srebrenica massacre to Oric’s Bosnian forces. He is now trying to conceal the fact that he wrote this passage, perhaps because he is aware of how shameful it is.

I cited this passage from Gibbs in my first ever post about him, and gave the quote in full. Readers are invited to check what I wrote about him against what he wrote in his book, to see if I cited him accurately. The discussion at Modernity blog was Gibbs’s response to that post. Readers are invited to read the exchange and judge for themselves whether my subsequent references to his statement were accurate or not.

Gibbs continues: ‘And there is yet a third fake quote, in the title of one of Hoare’s reviews: “First Check Their Sources 2: The Myth that ‘Most of Bosnia Was Owned by the Serbs Before the War.’” The first part of the title (“First Check Their Sources”) is a play on words from the title of my book, which is First Do No Harm. The embedded phrase in Hoare’s title (“Most of Bosnia Was Owned…”) is presented as a direct quote, with quotation marks. This quote is yet another fabrication, which falsifies both the literal wording of my book and also the substance of my stated views.’

As Gibbs knows very well, the part of the title in quote marks was not ‘presented as a direct quote’; nowhere did I claim that Gibbs had used those exact words. It was an entirely accurate paraphrasing of the position common to Gibbs and others like him, who do indeed claim that ‘most of Bosnia was owned by the Serbs before the war’. The exact words Gibbs uses are provided in detail in the article in question, with page numbers given. Again, readers are invited to read the article and decide for themselves if it was an accurate paraphrasing. Readers will note that Gibbs was wholly unable to respond to that article, so we may reasonably assume that apart from his quibble over my use of quote marks in the title, he accepts the validity of what I wrote there.

Finally, Gibbs claims ‘Due to Hoare’s tactics, the public understanding of Yugoslavia’s breakup has been fundamentally distorted, due to a climate of intimidation and fear, which has prevented genuine scholarly debate.’ But my ‘tactics’ simply involved writing a negative extended review of Gibbs’s book, exposing its poor scholarship and genocide denial. By contrast, here are Gibbs’s tactics, in his own words: ‘Every time in the future that I am forced to respond to Hoare’s attacks, I will emphasize the role of Kingston University in helping to make these attacks possible. I will especially emphasize the roles of Vice Chancellor Weinberg and Dean McQuillan, who are Hoare’s academic supervisors. Up to this point, there has been too little accountability with regard to Hoare’s conduct. It is time to correct the problem.’

I leave it to readers to make up their own minds about who is guilty of trying to intimidate. Gibbs has revealed himself as a bully with no respect either for truth or for freedom of speech. Neither Kingston University nor any other university worthy of the name will uphold a bogus, malicious complaint published on an unsavoury extremist website; one aimed solely at distracting attention away from an unanswerable refutation of poor scholarship, and at silencing legitimate criticism through threats and smears. But I am not going to be intimidated. I should like to take this opportunity to reaffirm what I have written about Gibbs, and to assure readers that it will not be retracted or taken down.

On 21 January, the Croatian journalists’ website autograf.hr published an article about me written by Dejan Jovic, chief analyst and special coordinator at the office of the president of Croatia, Ivo Josipovic. The Croatian newspaper Vecernji list republished Jovic’s article, then published my reply on 30 January, which is reproduced here with Croatian-language passages translated into English. My reply was also published in BCS translation by tacno.net.

[My four-part refutation of David Gibbs’s book ‘First do no Harm’ can be found here.]

Sir,

Dejan Jovic’s attack on me, published by autograf.hr on 21 January, contains numerous falsehoods. For example, he accuses me: ‘To justify the war in Iraq, they employed the metaphor of Hitler (for Saddam Hussein)’. Yet I have never used the Hitler metaphor to describe Saddam Hussein, and in June 2013 I described the Iraq war in the pages of the Guardian as a ‘misguided adventure’. He claims ‘people like Hoare advocate further interventions as the solution to new problems: in Syria, maybe afterwards in Iran, then who knows where tomorrow.’ In fact, I explicitly condemned the idea of a US or Israeli attack on Iran on my blog back in April 2012. Jovic claims: ‘Indeed, those same people who attack me have already attacked many others, including the Washington Times, The Guardian, and proclaimed some other reputable individuals and media outlets to be “genocide deniers”.’ But I have never accused either the Washington Times or the Guardian of genocide denial, and I doubt whether Jovic’s other critics have either. Jovic links me to the politics of the Henry Jackson Society. Yet I resigned from that organisation at the start of 2012, and have explicitly and strongly condemned its politics repeatedly since.

Jovic’s string of ad hominem falsehoods directed against me appear to be his way of distracting attention from the matter at hand: his uncritical endorsement of David Gibbs’s Great Serb propaganda tract (First Do No Harm: Humanitarian Intervention and the Destruction of Yugoslavia, Vanderbilt University Press, Nashville, 2009), which denies the Srebrenica genocide. Jovic claims: ‘In criticising my review of Gibbs’s book, Hoare “forgets” that Gibbs personally replied to his thesis on “genocide denial” – and completely refuted it.’ But this is untrue. In his book (p. 281), Gibbs says of Srebrenica: ‘Certainly, the murder of eight thousand people is a grave crime, but to call it “genocide” needlessly exaggerates the scale of the crime’ (p. 281). Furthermore, Gibbs claims the massacre was provoked by the Bosniak victims: ‘The origin of the Srebrenica massacre lay in a series of Muslim attacks that began in the spring of 1995… Such actions invited Serb reprisals, and this dynamic contributed to the fall of the safe area’ (p. 160). As for Jovic’s claim that Gibbs ‘totally refuted’ my accusation of genocide denial: this is also untrue; Gibbs was completely unable to defend himself from the charge. Readers can view my refutation of him and see for themselves.

Jovic first tries to deny that Gibbs engages in genocide denial, then tries to justify Gibbs’s genocide denial. He argues that ‘in the academic community – not our own post-Yugoslav one, but more broadly – there is no consensus on whether in the wars in the former Yugoslavia genocide was committed or not.’ But none of the people he cites, in support of the view that there was no genocide, is an expert on the former Yugoslavia. Jovic then claims ‘courts have ruled that in Bosnia-Hercegovina there was no genocide (apart from in Srebrenica)’. But this is untrue: the ICTY has not ruled that there was no genocide in Bosnia-Hercegovina apart from in Srebrenica. Both Karadzic and Mladic are currently being tried for genocide in municipalities across Bosnia-Hercegovina – not only in Srebrenica. Karadzic’s acquittal by the ICTY Trials Chamber for one count of genocide (in municipalities outside of Srebrenica) was recently reversed by the ICTY Appeals Chamber. Furthermore, in 1997, a German court convicted Nikola Jorgic, a Bosnian Serb, for genocide in the north Bosnian region of Doboj in 1992, and this ruling was upheld by the European Court of Human Rights.

Finally, Jovic claims that genocide is something invented by warmongers to justify military intervention, whereas people who deny genocide are really just trying to protect peace:

‘”Genocide” and “Hitler” are always there when it is necessary to start a new war – they are the “idea” explanation of the reason why one more is being launched. The difference between Gibbs and Hoare is, therefore, that one thinks that the wars are not waged out of altruism and that they do not solve problems, whereas the other maintains that liberal interventions are necessary and important, and that there is nothing controversial in them even if they result in a large number of deaths. One is an advocate of peace, the other of war.’ The reality is somewhat different: both Jovic and Gibbs seek to minimise the guilt of the Serbian aggressor for the 1990s war, and to shift as much blame as possible onto the Croatian and Bosnian victims of the aggression. The agenda of people like Jovic and Gibbs is to ensure that the real warmongers – tyrants like Slobodan Milosevic and Bashar al-Assad – should be free to wage their wars without fear of Western military intervention, or even of serious condemnation from the Western media.

Following his review of Gibbs’s book in Politicka misao, Jovic has now for the second time, in his reply to me and to the Bosnian organisations who criticised him, praised this book in glowing terms, while refusing to make any substantial criticisms of it. Yet Gibbs’s book is a Great Serbian propaganda pamphlet of no scholarly value. Gibbs has no expertise on the subject of the former Yugoslavia; he does not even read Bosnian/Croatian/Serbian; and his arguments are based on the distortion and manipulation of source material. He minimises the guilt and crimes of the regimes of Milosevic and Karadzic and of the JNA; exaggerates the guilt and crimes of the Croatians and Bosnians; and seeks to blame the West for the break-up of Yugoslavia and war.

1) Gibbs writes ‘And we will see later in the chapter that the post-Yugoslav state of Croatia, which became independent in 1991, had important historical links with Pavelic’s puppet state.’ (p. 48).

Discussing World War II, Gibbs mentions Ustasha genocide and collaboration, as well as the collaboration of Bosnian Muslims and Albanians, but fails to mention the crimes or collaboration of the Chetniks, or of Serbia’s Nedic regime.

3) Gibbs claims Croatia and Slovenia were not experiencing any oppression at Serb hands prior to declaring independence, so had no legitimate grounds for seceding: ‘In fact, there was no serious evidence of Serb oppression in Slovenia or Croatia prior to the secessionist actions. The main reasons for seceding, as we saw in the previous chapter, were economic in nature. The JNA’s initial use of force in Slovenia was quite mild’ (p. 97). Thus, he disregards the Serbian economic sanctions against Slovenia; the JNA’s disarming of the Slovenian and Croatian territorial defence; the Serb rebellion in Croatia; the ‘Log Revolution’; the JNA’s intervention in support of the Serb rebels; and the massacre of Croatian policemen at Borovo Selo.

4) Gibbs blames the war in Croatia on the Croatian side: ‘The Croatian war had its origins with the nationalist forces that were unleashed during the election campaign of 1990, when Franjo Tudjman’s HDZ party came to power.’ (p. 87)

5) Gibbs claims Germany engineered Croatia’s independence and the war in 1991: ‘We will see that Germany began encouraging Croatian nationalists and preparing them for independence months before the war began. Based on this new information, I argue that German officials did not simply respond to the war; they helped initiate it.’ (p. 77)

And again: ‘Germany played a key role in encouraging Slovenia and Croatia to secede, and surreptitiously assured them of external support for the secession efforts. Once the republics actually seceded, the European Community (backed by the United States) condemned the JNA’s efforts to block secession.’ (p. 105)

Gibbs’s anti-German conspiracy theory – which Jovic particularly praises – is based on biased, unserious and manipulated sources; he does not have even a single piece of real evidence to demonstrate that Germany encouraged Croatia to secede from Yugoslavia. I have exposed Gibbs’s anti-German falsifications in detail.

6) Gibbs condemns the European Community for recognising Croatia’s independence in its republican borders, and its failure to recognise the independence of the Krajina Serbs: ‘The European Community took the view that Croatia and other republics could not be divided. In effect, this meant the following: Croatia had the right to secede from Yugoslavia but this same right would not be recognised for the Krajina Serbs, who wished to separate from Croatia. In the ensuing conflict in Krajina, the European Community supported the Croatian position and opposed that of the Serbs. At the Hague conference, Van den Broek, the Dutch foreign minister, affirmed that any changes in the republican borders “were not an option”. This anti-Serb bent was evident at many levels.’ (p. 96).

And again: ‘On the one hand, the Community accepted the right of Croatia to separate from Yugoslavia, or at least viewed such separation with leniency. On the other hand, the European Community condemned efforts by the Krajina Serbs to separate from Croatia. Why the double standard ?’ (p. 97)

7) Gibbs claims: ‘In addition, the Muslim/Croat alliance of 1990-1991 recreated a similar alliance that had existed during World War II, when the two groups were the main supporters of the pro-Nazi Ustasa state, and both participated in the massacres of the Serbs that occurred during this period.’ (p. 116)

8) Gibbs claims: ‘Operation Storm also generated a humanitarian disaster. The attack forced from 150,000 to 200,000 Serbs to flee, producing what was probably the largest single act of ethnic expulsion of the entire war.’ (p. 163)

9) Gibbs writes: ‘Another feature of the Balkan conflict was the tendency of the Western media needlessly to exaggerate the atrocities committed by Serb armies… Atrocities committed at Serb-run detention camps were presented in sensationalist fashion, for example, and they became “extermination camps” comparable to Auschwitz. President Izetbegovic himself encouraged these interpretations. Yet, in 2003, shortly before his death, Izetbegovic conceded that “there were no extermination camps” in Bosnia. He also conceded that his previous claims to the contrary had been deliberate misrepresentations, intended to outrage Western public opinion and thus trigger Western military intervention against the Serbs.’ (p. 216) In this way, Gibbs minimises the criminal nature of Serb concentration-camps like Omarska, Keraterm and Trnopolje.

10) Gibbs accuses the Bosnian armed forces of shelling their own civilians during the siege of Sarajevo, in order to blame it on the Serbs ‘: ‘In several cases, Bosnian forces themselves bombarded Sarajevo and blamed the resulting deaths on the Serbs.’ (p. 125)

Furthermore: ‘In should also be noted that the [Bosnian] government restricted the right of Sarajevo residents to flee the city, effectively blocking the exit for many besieged civilians. This policy increased the potential for casualties and fit in nicely with the government’s public relations strategy. In the world’s media, the deaths from shelling and sniper fire were blamed exclusively on Serb forces, but in reality the Bosnian government bore some responsibility as well.’ (p. 126)

11) Gibbs claims the Serbs legitimately owned most of Bosnia: ‘: ‘It is clear that Serb forces were on the offensive during much of the war, and they conquered large areas of Bosnia-Herzegovina. But the extent of Serb aggression was once again exaggerated. Newspaper articles repeatedly noted that Serbs controlled some 70 percent of Bosnia’s territory, despite the fact that they only constituted 31 percent of the total population… What such reports omitted was that Serbs had always occupied most of Bosnia’s land area, owing to their demographic dominance in rural regions.’ (p. 124)

12) Gibbs claims that it was the Muslims and Croats who caused the war to break out in Bosnia in 1992, whereas the Serbs wanted peace: ‘In March 1992, however, before full-scale war had begun, Serb leaders welcomed the Lisbon agreement and they endorsed it in the strongest terms. Radovan Karadzic, who represented the Serbs at Lisbon, called the agreement a “great day for Bosnia and Herzegovina.” And it should be recalled that it was the Muslims and the Croats, not the Serbs, who actually reneged. There is no evidence that the Serbs were bent on war at this point.’ (p. 111)

So, those are the theses of David Gibbs, which Jovic has now chosen to praise on two occasions. For Jovic to praise so highly Gibbs’s extreme anti-Croatian, anti-Bosnian and Great Serb propaganda tract is scandalous. Yet it is scarcely surprising, since in his own book about the break-up of Yugoslavia (Jugoslavija – država koja je odumrla: Uspon, kriza i pad Kardeljeve Jugoslavije (1974-1990), Prometej, Zagreb, 2003), Jovic already revealed that his sympathies in the 1990s were with Slobodan Milosevic and the JNA. Jovic praised Milosevic as a fighter for Yugoslav statehood and unity and defender of Tito’s legacy, regretted the failure of the JNA to crush Croatian rearmament in 1991, and absolved both Milosevic and the JNA as instigators of the war and perpetrators of the mass killing:

1) Comparing Slobodan Milosevic and Vaclav Havel:

Jovic, p. 56: ‘The direction of the protests against the regime, for example in Czechoslovakia and in Serbia, was totally different, so Havel and Milošević became antipodes in everything. While one led a liberal-democratic revolution against the state, the other led an anti-bureaucratic revolution against an anti-state ideology and anarchy, for the establishment of a state. ‘

2) Lamenting the JNA’s inability to halt Croatia’s rearmament

Jovic, p. 64: ‘The British reaction to separatism in Northern Ireland is a typical example of a liberal (minimal) state, which did not refrain from introducing a state of war and employing tanks in order to halt a civil war before it had begun. In contrast to this, in the state that was withering away, Socialist Yugoslavia, the Yugoslav People’s Army turned itself into a filmmaker recording the illegal import of weapons at the border (with Hungary) whose duty it was to protect from that sort of illegal activity.’

3) On Milosevic as a ‘Yugoslav nationalist’

Jovic, p. 65n: ‘In his first phase, Milosevic was probably a Yugoslav nationalist, but he never became a Serb nationalist, as many call him today. Never, indeed, did he want to form a Serb national state. His attachment to Yugoslavia, even to the point when Yugoslavia had become just a name and nothing more, was the main reason why he in the end lost popularity and the elections (2000).’

4) On the Chetniks as a ‘strong-pro-Yugoslav resistance movement’

Jovic, p. 141: ‘He who claims that Yugoslavia had to collapse in 1941 because of ethnic tension, should have to explain how it was possible that there arose, immediately following the occupation, two strong pro-Yugoslav resistance movements (Mihailovic’s and Tito’s).’

Jovic, p. 400: ‘His program now [in 1987], for the first time, seemed clear even to those at the lowest level of the social hierarchy, and he carried it out decisively: first the unity of the Serb Party, then unity of Serbia, then of the Yugoslav Party, then of Yugoslavia. That programme had four phases – Milosevic had now accomplished the first; at the third he would be halted, and at the fourth defeated.’

7) On Milosevic’s desire to restrain Serb nationalism

Jovic, p. 471: ‘Treating Milosevic and Kucan with a bit of benevolence, one could say that at least part of their motive could be explained by an attempt to retain power in order to prevent the “real nationalists” (those gathered around the New Review or people such as Vuk Draskovic was at the time) from coming to power in Slovenia and Serbia. As David Owen later said of Milosevic, they had to “ride the tiger of nationalism if they did not want the tiger to swallow them” (1995: 129). They appeared powerful, omnipotent, but in reality they were both afraid that the exit of the League of Communists from the political scene could bring about only worse nationalism. They accepted nationalism in order to prevent it.’

8) On the JNA’s ‘good intention’ to prevent ethnic conflict in Croatia

Jovic, p. 485: ‘When the Croatian government attempted to prevent the [Serb rebel] takeover, the Yugoslav People’s Army imposed itself between it and the Serbs, perhaps with the good intention of preventing direct ethnic conflict in Croatia.’

9) On Milosevic as ‘genuinely surprised’ by break up of Yugoslavia and war

Jovic, pp. 491-492: ‘The sources that were at the disposal of the author of this book do not give sufficient reason to support the conclusion that the members of the Yugoslav political elite in this period (including, thus, Slobodan Milosevic and Milan Kucan as well) intended to destroy Yugoslavia. Many of them, like most Yugoslavs, most analysts at home and abroad and the international political community as a whole, were genuinely surprised by the break-up, and still more by the war that broke out after that.’

10) On war in Yugoslavia as expression of state weakness and ‘private violence’

Jovic, pp. 492-493: ‘‘The violence that, in the ruins of Yugoslavia, in a stateless terrain, erupted in the ‘90s of last century had, indeed, the same cause as the collapse itself: it was the expression of a weak, ineffective state that was not in a position to suppress the private armies, private revenge, private “laws” and private violence. The wars that were waged in those ruins were to a large extent private revenge in which neighbours repaid some imaginary quid pro quo to their neighbours.’

Jovic is right about one thing: the criticisms being made against him are political, not academic in motivation. If Jovic were simply a scholar expressing his private opinion, it would not matter that his work rehabilitates Milosevic and the JNA. It would not matter that he praises a propaganda pamphlet with no academic value, that supports Croatia’s territorial dismemberment and denies the Srebrenica genocide. Jovic has the right, as a scholar, to express his views freely. But he is the Croatian president’s chief analyst and special coordinator. It is dangerous to both Croatia and Bosnia-Hercegovina for someone holding such views, and with such poor analytical judgement and grasp of reality, to occupy the position that he does.

The International Criminal Tribunal for the former Yugoslavia has acquitted on appeal Momcilo Perisic, former Chief of Staff of the Army of Yugoslavia (VJ), who had previously been sentenced to 27 years in prison for war-crimes in Croatia and Bosnia-Hercegovina. He was one of only six officials from Serbia-Montenegro ever indicted by the ICTY for war-crimes in Bosnia. He was the only member of the high command of the Yugoslav People’s Army (JNA) or VJ ever indicted for war-crimes in Croatia or Bosnia, and the only former JNA officer from Serbia or Montenegro of any rank ever indicted over Bosnia. His acquittal means that, to date, no official or army officer of Serbia-Montenegro and no member of the JNA or VJ high command has been convicted by the ICTY for war-crimes in Bosnia. By any standards, this represents a monumental failure on the part of the Tribunal. Precisely what kind of failure, and whether it is a failure of the Prosecution or the judges or both, is open to debate.

Perisic’s acquittal follows the ICTY’s recent acquittals of Croatia’s Ante Gotovina and Mladen Markac, and of Kosovo’s Ramush Haradinaj. Those previous acquittals had provoked a veritable paroxysm of fury from Serbia’s politicians such as President Tomislav Nikolic, Prime Minister Ivica Dacic and UN General Assembly president Vuk Jeremic, who condemned them as proving that the ICTY was an anti-Serb and/or a political court. Commentators in the West widely agreed; an ill-informed rant by David Harland, former head of UN Civil Affairs in Bosnia-Hercegovina in 1993-1995, upholding all the old Serb-nationalist stereotypes of the ICTY’s and West’s supposed anti-Serb bias, was published in the New York Times and received wide publicity even from reputable sources. People who had apparently been fairly satisfied with the ICTY’s not entirely glorious performance over the past two decades now emerged from the woodwork to denounce it in bitter terms.

The acquittal of such a high-ranking Serbian official, following the acquittal of two high-ranking Croats and one high-ranking Kosovo Albanian, provides further proof – if any were needed – that the ICTY is not ‘anti-Serb’. Perisic is, in fact, neither the first nor the most high-ranking senior Serbian official to be acquitted by the Tribunal; former Serbian President Milan Milutinovic was acquitted back in 2009 of war crimes against Kosovo Albanians.

Consequently, the Serbian government has now made a rapid U-turn in its view of the Tribunal. Prime Minister Dacic (also leader of the Socialist Party of Serbia founded by Slobodan Milosevic) had responded to the Gotovina and Markac acquittals by stating ‘This confirms the claims of those who say that the Hague Tribunal is not a court and that it completes political tasks that were set in advance’. Yet his reaction to the Perisic acquittal is that it ‘negates accusations about the alleged aggression of the Army of Yugoslavia against Bosnia and Croatia’. The latter conclusion is echoed by the Sense News Agency, which provides detailed overage of the activities of the ICTY and which claims that ‘Momcilo Perisic was the only senior official from Serbia and FR Yugoslavia convicted by the Tribunal and sentenced for crimes in Bosnia and Herzegovina. Slobodan Milosevic was charged with the same crimes, and the judgment can be considered as Milosevic’s posthumous acquittal for Sarajevo and Srebrenica.’

In these circumstances, there is naturally a temptation for those on the other side of the front-lines from the Serb nationalists – those who wanted to see the Serbian perpetrators of war-crimes in Croatia and Bosnia punished, and the victims receive justice – to cry foul, and to carry out a Dacic-style U-turn of their own. A temptation, that is, to say that the supporters of Milosevic, Seselj and Tudjman were right after all, and the ICTY is really just a kangaroo court whose verdicts are political. But this temptation should be resisted, both for pragmatic reasons and, more importantly, for reasons of principle.

Pragmatically, conceding that the ICTY is a kangaroo court whose verdicts are political means handing an enormous victory to those extremists – Serb and Croat, right-wing and left-wing – who supported the elements that carried out the war-crimes and that have always resisted the efforts of the ICTY to punish them. It is not for nothing that – both in the former Yugoslavia and in the West – ethnic cleansers, fascists and extremists have consistently opposed the Tribunal, whereas liberals, democrats and progressives have supported it. To reject the legitimacy of the ICTY and its verdicts means negating not only those verdicts we don’t like, but all the good that has been achieved by precisely this Tribunal, despite its undeniable numerous failures. The ICTY was the first international court to establish that the Srebrenica massacre was an act of genocide, paving the way for the confirmation of this fact by the International Court of Justice.

Immediately following the acquittals of Gotovina, Markac and Haradinaj, the ICTY in December of last year convicted Zdravko Tolimir, Assistant Commander of Intelligence and Security of the Army of Republika Srpska (VRS), for genocide, and in the process established that the group targeted for genocide by the VRS was the Muslim population of East Bosnia as a whole – not just of Srebrenica – and that the genocidal act extended to Zepa as well as Srebrenica. It is a tremendous breakthrough for the legal recognition of the Bosnian genocide beyond Srebrenica. If the Perisic acquittal is to be dismissed as a political verdict, it undermines the Tolimir verdict as well. You cannot have it both ways, and cheer the verdicts with which you agree while denouncing those you don’t like. Either the ICTY is a legitimate court or it is not.

Which brings us to the matter of principle: a genuine, legitimate court must have the right and ability to acquit, as well as to convict. If the ICTY were really a kangaroo court, all those accused would be convicted. Instead of which, we have proof of genuine pluralism, with panels of judges dividing 2-1 and 3-2 over major cases, and the Appeals Chamber reversing the decision of the Trial Chambers. Whatever his political views or personal inclinations, Judge Theodor Meron, presiding judge at both the Appeals Chamber that acquitted Gotovina and Markac and the one that acquitted Perisic, and currently under attack from critics for the acquittals, was in each case only one judge in a panel of five who came from different countries. He was the only judge who acquitted both Gotovina and Markac on the one hand and Perisic on the other, and was not even a member of the Trial Chamber that acquitted Haradinaj. The only other judge who was a member of the Appeals Chamber both for Gotovina-Markac and for Perisic was Carmel Agius, and he strongly opposed the acquittal of Gotovina and Markac but supported that of Perisic. Judge Bakone Justice Moloto was presiding judge both in the Trial Chamber that convicted Perisic and in the Trial Chamber that acquitted Haradinaj. In the first case, he dissented from the majority opinion but was outvoted – something that took place in September 2011, a mere year and a half ago. Hence, I must respectfully disagree with my colleague Eric Gordy, who argues that the acquittals all form part of a consistent policy on the part of the judges in this period.

The conspiracy theorists (among whom I do not include Eric) would either have us believe that the initial indictments of Gotovina/Perisic and their initial convictions were simply elaborate deceptions paving the way for the final, pre-determined acquittals. Or they would have us believe that whenever the ICTY convicts it is acting legitimately and whenever it acquits it is acting politically. But a court that only convicts and never acquits is not a genuine court. Even at the International Military Tribunal at Nuremberg that tried the leaders of Nazi Germany after World War II, three of the twenty-four defendants – i.e. one in eight of the high-ranking officials of Nazi Germany who were prosecuted – were acquitted. The whole point of a fair trial is that guilt is not assumed and defendants are assumed to be innocent until proven guilty.

The present author has, in the past, condemned the ICTY for retreating in the face of Serbian obstruction of its activities, citing such instances as the failure to indict most of the leading members of the Joint Criminal Enterprise from Serbia and Montenegro; the acquittal of Radovan Karadzic on one count of genocide; and the censoring of the minutes of the Supreme Defence Council. However, the acquittal of Perisic is not part of this pattern; he had already been arrested and convicted, so any Serbian resistance in his case had already been overcome.

It is one thing to accuse the Tribunal of shabby or unprincipled compromises and retreats, but quite another to accuse it of actually falsifying the guilt or innocence of suspects. Karadzic’s acquittal aside, the present author has never accused the Tribunal either of acquitting anyone guilty or of convicting anyone innocent. I did not, for example, condemn its initial conviction of Gotovina and Markac. Nor did I condemn its acquittal of Milutinovic or of Miroslav Radic (one of the three JNA officers indicted over the Vukovar hospital massacre). I am somewhat amazed that so many people, of all national backgrounds and political persuasions, have so little respect for the principle that it is ultimately for the court to decide who is innocent and who is guilty. Of course, it is entirely possible for a court to get things wrong and for a miscarriage of justice to occur. But a miscarriage of justice needs careful explaining as to how it was arrived at, not mere petulant denunciation.

In the case of Perisic, the essence of the disagreement between the Trial Chamber majority and the Appeals Chamber majority was that the first considered that ‘under the VRS’s strategy there was no clear distinction between military warfare against BiH forces and crimes against civilians/and or persons not taking active part in hostilities’, while the latter argued that ‘the VRS was not an organisation whose actions were criminal per se; instead, it was an army fighting a war’, albeit one that also engaged in criminal activities. Thus, the Trial Chamber considered that there was no clear distinction between the VRS’s lawful and its criminal actions, while the Appeals Chamber considered that there was.

Furthermore, the Trial Chamber ruled that though it could not be proven that the military assistance provided by Perisic to the VRS was specifically intended by him to support its criminal as opposed to its legal activities, nevertheless, since he clearly knew that his assistance would be used for criminal activities at Sarajevo and Srebrenica, as well as for legal military purposes, he was therefore guilty of aiding and abetting its criminal activities. The Appeals Chamber, by contrast, ruled that since it could not be proven that that he intended his military assistance to be used for criminal as opposed to legal military purposes, he could not be held to have criminal intent and therefore be held culpable for aiding and abetting the VRS’s crimes.

In other words, there is little disagreement between the two Chambers regarding facts of the case (so far as the Bosnian part of it is concerned) but principally over what conclusion should be drawn from them. The disagreement is not equivalent to that between the Trial Chamber and Appeals Chamber in the case of Gotovina and Markac, when the two chambers fundamentally disagreed over what the facts were; i.e. over whether the Croatian Army had deliberately shelled civilian targets with the intent of bringing about the removal of the Serb population from the so-called Krajina region. In the case of Perisic, the Appeals Chamber was not throwing out an unsafe conviction based upon a highly spurious interpretation of events, as was the case with the acquittal of Gotovina and Markac. Rather, it was expressing a different judgement on the nature of culpability to that of the Trial Chamber.

In this disagreement, my own sympathies are entirely with the Trial Chamber, and I applaud the dissent from the Appeals Chamber majority opinion of Judge Liu Daqun, who argued that by acquitting Perisic, the Appeals Chamber was setting the bar too high for convictions on grounds of aiding and abetting. However, personal sympathies aside and on the understanding that judges are supposed to be wholly impartial, the conclusions of either Chamber could legitimately be drawn from the facts. Unfortunately, the more conservative type of conclusion of the Appeals Chamber is the one I would have predicted judges at the ICTY usually to reach. My colleague Florian Bieber has made the reasonable point that ‘arguing that not all [the VRS’s] activities were criminal is about as convincing as stating that the Mafia is not only involved in criminal activities and thus supporting it does not mean that one is “aiding and abetting” criminal activities.’ Following that analogy, Perisic could be compared to a powerful businessman who donates money, vehicles and properties to a charity known to be acting as a front for Mafia activities. Even if he clearly knew the charity’s true purpose, convicting him might not be so easy for the courts. Al Capone was, after all, only convicted for tax evasion.

This brings us to the ultimate reason for Perisic’s acquittal: the Prosecution’s case against him, resting as it did on a model of culpability that was judicially controversial, was not a strong one. The Prosecution was unable to prove his intent to commit crime, or that the assistance he provided to the VRS was intended to further its crimes. It was unable to link him directly to any specific crime. It could merely prove that he aided and abetted an army – the VRS – that he knew was engaging in criminal activities, but which was also engaging in lawful military activities.

The second reason why the Prosecution’s case was weak concerns the question of command responsibility. The Trial Chamber ruled that Perisic had no command responsibility over VRS forces, but that he did have such authority over the ‘Serb Army of Krajina’ (SVK – so-called ‘Croatian Serbs’), and in addition to aiding and abetting the VRS forces engaged in criminal acts as Sarajevo and Srebrenica, it convicted him for failing to punish the SVK perpetrators who shelled Zagreb in May 1995, killing and injuring civilians. But the Trial Chamber recognised that Perisic had ordered the SVK not to shell Zagreb and that it had disregarded his orders, choosing instead to obey the orders of Milan Martic, ‘President of the Republic of Serb Krajina’, to shell the city. This implicit recognition of Perisic’s lack of effective command responsibility over the SVK forces formed the basis for the Appeal Chamber’s overturning of his conviction for the war-crime at Zagreb – and even Judge Liu, who dissented from the majority over Perisic’s acquittal for Sarajevo and Srebrenica, agreed with the majority on this count. In other words, the Prosecution chose to indict someone who had no command responsibility over the Bosnian Serb forces guilty of crimes in Bosnia (Sarajevo and Srebrenica) and only ambiguous command responsibility over the Croatian Serb forces guilty of crimes in Croatia (Zagreb).

Having myself worked as a war-crimes investigator at the ICTY, I am not at all surprised that four out of the five judges (and one out of three in the original Trial Chamber) were not convinced by the Prosecution’s case. Generally speaking, cases involving high-ranking perpetrators far removed from the crime base are complicated to build unless their command responsibility is clear and unambiguous. Thus, it was relatively straightforward to build a case against Milosevic for war-crimes in Kosovo, where his command responsibility (as President of the Federal Republic of Yugoslavia) was clear. But more complicated to do so over Bosnia, where (as President of Serbia) it was not. In such cases where evidence of de jure responsibility is lacking, prosecutors need strong evidence of de facto responsibility.

But Perisic was not a Milosevic, Karadzic or Mladic. He was not a member of the top Serbian-Montenegrin-JNA leadership that planned and instigated the wars against Croatia and Bosnia, and his name is not listed among the principal members of the Joint Criminal Enterprise as laid down in the Milosevic indictments. He was commander of the Artillery School Centre in Zadar in Croatia, and in January 1992 became commander of the JNA’s 13th Corps, based in Bileca in Hercegovina. In these roles of less than primary importance, he participated directly in the wars in Croatia and Bosnia. Had the Prosecution chosen to indict him for war-crimes committed by his forces in this period, he would in all likelihood have been convicted. However, it did not.

The three principal phases of mass killing by Serb forces in the Bosnian war were the initial Serbian blitzkrieg of spring, summer and autumn 1992, resulting in the Serbian conquest of about 70% of Bosnian territory; the siege of Sarajevo, lasting from spring 1992 until autumn 1995; and the Srebrenica massacre of July 1995. The first of these claimed by far the largest number of victims; according to the figures provided by Mirsad Tokaca’s Research and Documentation Centre, more Bosniaks were killed in the Podrinje region (East Bosnia) in 1992 than in 1995, the year of the Srebrenica massacre. Moreover, the regular Serb army forces that undertook the initial blitzkrieg, until 19 May 1992, were formally part of the JNA and not only de facto but also de jure under the command and control of Serbia-Montenegro, in the form of the rump Yugoslav Federal presidency made up of members from Serbia and Montenegro, and of the high command of the JNA/VJ.

Had the ICTY Prosecution indicted the top JNA commanders and Yugoslav Presidency members (from Serbia and Montenegro) who commanded these Serb forces during the blitzkrieg, and prior to that the earlier assault on Croatia, they would no doubt have been successful and Serbia’s direct responsibility for the war in Bosnia would have been judicially established. A successful outcome would have been particularly likely, given that a couple of these war-criminals have been obliging enough to publish their memoirs or diaries in which they admit their planning of the war.

On 19 May 1992, however, the newly proclaimed Federal Republic of Yugoslavia (FRY), comprising Serbia and Montenegro, formally withdrew its forces from Bosnia, and a Bosnia Serb army – the VRS – formally came into being. Serbia’s political and military leadership thereby ceased to have de jure command and control over the Bosnian Serb forces. Furthermore, the Trial Chamber that convicted Perisic ruled that, in fact, the Serbian leadership in this period did not have even de facto control over the Bosnian Serb forces either – as did the International Court of Justice, in its own 2007 verdict in the case of Bosnia vs Serbia. The arrangement whereby the Bosnian Serb war-effort would be formally independent of Belgrade was put in place with the deliberate intention by Serbia’s leadership of avoiding accusations of aggression and involvement in the Bosnian war. Of course, Serbia continued to provide extensive financial and military support to the Bosnian Serb forces. But it should have been clear to any war-crimes investigator worth their salt that convicting FRY military commanders of war-crimes in Bosnia after 19 May 1992 would be a much more difficult task.

Momcilo Perisic became Chief of Staff of FRY’s army, the VJ, only in August 1993, and his indictment by the ICTY only covers his activities from this period. The policy of supporting the VRS had been put in place under his predecessors, and though he was a strong supporter of the policy and apparently institutionalised it, he was scarcely its architect. Even as regards the siege of Sarajevo – one of the two crimes in Bosnia for which Perisic was indicted – the Serb killings of civilians peaked in the spring and summer of 1992 and dropped considerably thereafter, dropping particularly from around the time that Perisic took over (according to Tokaca’s figures). Chief of Staff Perisic was therefore a singularly bad choice of individual to indict for war-crimes in the period from August 1993: though he was not a simple figurehead equivalent to President Milutinovic, and enjoyed real authority in a post of considerable importance, he was ultimately just one of Milosevic’s interchangeable officers; little more than a cog, albeit a large one, in the military machine, and moreover in a part of the machine whose culpability for actual war-crimes was secondary at the time, since the Milosevic regime had devolved most of the killing to a different part – the VRS.

Had the ICTY prosecutors ever really understood the chronology and organisation of the Serb aggression against Bosnia, they could have avoided such a poor decision. But it is clear from reading Carla del Ponte’s memoirs that she, at least, never had more than a muddled understanding of it. She nebulously attributes primary and equal responsibility to the war as a whole to two individuals, Slobodan Milosevic and Franjo Tudjman, but is unable to explain how that responsibility translated into the form that the war took. Although she deserves credit for eschewing a narrowly legalistic and lawyerly approach to war-crimes prosecutions and for attempting to view the big picture of the war – and therefore for insisting on genocide indictments in the face of conservative resistance from some of her colleagues – the big picture that she viewed was an erroneous one. Her starting point was not a global systemic analysis of the aggression, but apparently the big crimes with which she herself, as a non-expert on the war, was familiar – the siege of Sarajevo and the Srebrenica massacre.

In her own memoirs, del Ponte’s former spokeswoman Florence Hartmann recalls that del Ponte insisted, among other things, that Milosevic himself be indicted for Srebrenica and Sarajevo, in the face of resistance from Geoffrey Nice and others, who feared that they would not be able to convince the judges of the validity of the charge. Del Ponte was thus motivated by the commendable desire to ensure that Serbia’s leadership would not escape responsibility for the killing in Bosnia, but her analytical confusion ensured her plan would not go well. In light of Perisic’s acquittal, Nice’s caution, as recalled by Hartmann, appears entirely vindicated. That said, it is worth restating that Perisic’s indictment covered only the period from August 1993, when he was Chief of Staff, not the period when the Serbian aggression was actually launched and the largest part of the killings occurred. Thus, the claims made by Dacic and by the Sense News Agency, that the verdict exonerates Milosevic and Serbia of aggression against Bosnia and Croatia and of culpability in the siege of Sarajevo, are unfounded. Furthermore, as noted above, the Appeals Chamber has not actually changed the facts as established by the Trial Chamber: that the VRS was engaged in criminal activity, at Sarajevo and Srebrenica, and that Serbia’s army was aiding and abetting it while it was doing so.

On Twitter, Luka Misetic, the lawyer who successfully represented Gotovina, has succinctly referred to ‘Carla Del Ponte’s dark legacy: Perisic, Haradinaj, Oric, Gotovina, Cermak, Markac, Boskoski, Halilovic all indicted by CDP, all acquitted.’ The failure at the ICTY is that of a Prosecution that has repeatedly failed to secure the convictions of those it has indicted, not of the judges who were unconvinced by its cases.

David Harland, Executive Director of the Center for Humanitarian Dialogue and head of UN Civil Affairs in Bosnia-Hercegovina in 1993-1995, recently published, in the New York Times, a polemic against the International Criminal Tribunal for the former Yugoslavia (ICTY). Responding to the recent acquittals of Croatia’s Ante Gotovina and Mladen Markac and Kosovo’s Ramush Haradinaj, he accused the Tribunal of ‘selective justice’ on the grounds that it has essentially only convicted Serb perpetrators, acquitted non-Serb perpetrators and failed to punish crimes against Serbs. This is, of course, the claim that hardline Serb nationalists and supporters of Slobodan Milosevic have been making for about the last two decades. Instead of carrying out any research into the actual record of the ICTY in order to support his thesis, Harland simply repeats a string of cliches of the kind that frequently appear in anti-Hague diatribes by Serb nationalists.

1) Harland writes: ‘More Serbs were displaced — ethnically cleansed — by the wars in the Balkans than any other community. And more Serbs remain ethnically displaced to this day.’

Harland doesn’t provide any statistical evidence to support this claim, but he appears to be conflating being ‘displaced’ with being ‘ethnically cleansed’, and to count all Serbs displaced by all the wars in Croatia, Bosnia and Kosovo as having been ‘ethnically cleansed’ – as opposed to being evacuated by the Serb authorities themselves, for example, or fleeing Sarajevo to escape the siege. The Appeals Chamber of the ICTY, in acquitting Gotovina, Markac and Haradinaj, rejected the prosecution’s claims that a Joint Criminal Enterprise (JCE) existed, on the part of either the Croatian or the Kosovar Albanian perpetrators, to bring about the removal of the Serb population from either ‘Krajina’ or Kosovo. Harland has not attempted to address the Appeal Chamber’s conclusions. He has simply re-stated a falsehood after two panels of judges carefully explained why the claims on which it was based are false.

2) Harland writes ‘Almost no one has been held to account [for these crimes against Serbs], and it appears that no one will be… Convicting only Serbs simply doesn’t make sense in terms of justice, in terms of reality, or in terms of politics.’

It is untrue that nobody has been convicted by the ICTY for crimes against Serbs, or that no non-Serbs have been convicted. Bosniaks, Croats and Albanians convicted of crimes against Serbs include Rasim Delic, the top Bosnian army commander in 1993-1995; Enver Hadzihasanovic, former commander of the Bosnian army’s 3rd Corps; Amir Kubura, former commander of the 7th Muslim Mountain Brigade; Zdravko Mucic, Hazim Delic and Esad Landzo, former commanders and guard for the Celebici prison-camp; and Kosova Liberation Army camp guard Haradin Bala. Former Croatian Army major-general Mirko Norac was indicted by the ICTY for crimes against Serb civilians in the Medak Pocket in September 1993; his case was transferred to the Zagreb District Court, which convicted him.

3) Harland writes: ‘Altogether, almost all of the West’s friends have been acquitted; almost all of the Serbs have been found guilty.’

Harland appears here to be following the example of the extreme Serb nationalists who divide all former Yugoslavs into ‘Serbs’ on the one hand and ‘friends of the West’ on the other, and who claim that the ICTY ‘persecutes’ Serbs because they are independent of the West. Yet two of the most senior Serb officials to be convicted by the ICTY, former Republika Srpska president Biljana Plavsic and former Yugoslav Army chief of staff Momcilo Perisic, had pursued friendly relations with the West in the second half of the 1990s. On the other hand, being unfriendly to the West is scarcely something of which other prominent Serb indictees can be accused, since Western and Serb officials spent the best part of the 1990s collaborating with one another.

Ratko Mladic and Britain’s Michael Rose

Slobodan Milosevic and the US’s Richard Holbrooke

Ratko Mladic and the Netherlands’ Thom Karremans

Milosevic and Holbrooke again

4) Harland writes: ‘Convicting only Serbs simply doesn’t make sense in terms of justice, in terms of reality, or in terms of politics. The Croatian leaders connived in the carve-up of Yugoslavia, and contributed mightily to the horrors on Bosnia and Herzegovina. I witnessed for myself the indiscriminate fury of the Croatian assault on the beautiful city of Mostar.’

Harland either does not know, or chooses not to mention, that the ICTY is currently prosecuting a group of prominent Bosnian Croat perpetrators for crimes carried out in Bosnia: Milivoj Petkovic, Jadranko Prlic, Slobodan Praljak, Bruno Stojic, Valentic Coric and Berislav Pusic. They are specifically being tried over the Croatian attack on Mostar. The ICTY has already convicted a large number of Croat perpetrators, including Dario Kordic, wartime leader of the Croatian Democratic Union in Bosnia and vice-president of the Croat Community of Herceg-Bosna, and Tihomir Blaskic, former commander of the (Bosnian) Croat Council of Defence (hence equal in rank to the Bosnian Serbs’ Ratko Mladic) and inspector in the General Inspectorate of the Croatian Army. NB Blaskic spent longer in prison than any Yugoslav army officer sentenced over the 1991-1992 Croatian war, except Mile Mrksic.

5) Harland continues: ‘The Bosnian Muslim leadership had deeply compromising links to the international jihahist movement, and hosted at least three people who went on to play key roles in the 9/11 attacks on the United States. I witnessed attacks by foreign mujahedeen elements against Croat civilians in the Lasva Valley.’

The accusation regarding the Bosnian government’s supposed links to the international jihadist movement and 9/11 attackers is sheer Islamophobic defamation. As regards the mujahedin, Harland either does not know, or chooses not to mention, that Rasim Delic, commander of the Bosnian army from June 1993 until the end of the war, was convicted by the ICTY over crimes carried out by the mujahedin against Serb civilians. On the other hand, the ICTY Appeals Chamber found in the case of Bosnian army 3rd Corps commander Enver Hadzihasanovic that he could not be held culpable for the crimes of the mujahedin, since ‘the relationship between the El Mujahedin detachment and the 3rd Corps was not one of subordination. It was quite close to overt hostility since the only way to control the El Mujahedin detachment was to attack them as if they were a distinct enemy force.’

As with the Croatian attack on Mostar, so with the Bosnian government and the mujahedin, Harland’s portrayal of the ICTY as simply having ignored the crimes in question reflects either an extraordinary degree of ignorance regarding the ICTY’s record, or is deliberately deceptive of his readers.

6) Harland continues: ‘And the Kosovar Albanian authorities deserve a special mention, having taken ethnic cleansing to its most extreme form — ridding themselves almost entirely of the Serb and Roma populations. Kosovo’s ancient Christian Orthodox monasteries are now almost the only reminder of a once-flourishing non-Albanian population… Haradinaj has been cleared of the charges brought against him, but the fact remains that hundreds of thousands of Serbs — mostly the elderly, women and children — were ethnically cleansed from Kosovo by the Kosovar Albanians.’

Again, Harland does not attempt to address the ICTY judges’ refutation of the claim that Kosovar Albanians had engaged in a ‘Joint Criminal Enterprise’ to remove the Serb and other non-Albanian population from Kosovo. His claims that the Kosovar Albanian authorities have succeeded in ‘ridding themselves almost entirely of the Serb and Roma populations’ and that ‘hundreds of thousands of Serbs — mostly the elderly, women and children — were ethnically cleansed from Kosovo by the Kosovar Albanians’ are further falsehoods: of the roughly 200,000 Serbs living in Kosovo before 1999, roughly half are still there.

7) Harland concludes: ‘What has happened at the tribunal is far from justice, and will be interpreted by observers in the Balkans and beyond as the continuation of war by legal means — with the United States, Germany and other Western powers on one side, and the Serbs on the other.’

To which one can reply: only by anti-Western Serb-nationalist politicians and ideologues and their fellow travellers.

Perhaps the most disgraceful statement in Harland’s tissue of falsehoods is his claim that ‘I lived through the siege of Sarajevo.’ In fact, as the UN’s head of Civil Affairs in Bosnia from June 1993 until the end of the war, Harland was scarcely a victim of the siege. Following the Markale massacre in Sarajevo of 28 August 1995, when Serb shelling killed 37 civilians, Harland engendered the myth that the Bosnians themselves might have been responsible; as he testified, ‘I advised [UN commander] General Smith on that one occasion to be a little unclear about what we knew about the point of origin of the mortar shell that landed on the Markale market-place in order to give us time, give UNPROFOR time, to get UNPROFOR and UN people off Serb territory so they couldn’t be harmed or captured when General Smith turned the key to authorise air-strikes against the Serbs. That is true. That was less than fully honest.’

Indeed, the UN in Bosnia collaborated with the Serb besiegers of Sarajevo and helped to maintain the siege. It obstructed any possibility of outside military intervention to halt the genocide. It maintained an arms embargo that prevented the victims of the genocide from defending themselves properly. It was complicit in the murder of Bosnian deputy prime-minister Hakija Turajlic by Serb forces in January 1993. It abandoned the ‘safe areas’ of Srebrenica and Zepa to Mladic’s genocidal operations. Romeo Dallaire said of the UN, ‘Ultimately, led by the United States, France and the United Kingdom, this world body aided and abetted genocide in Rwanda. No amount of its cash and aid will ever wash its hands clean of Rwandan blood.’ The same could be said of the UN with regard to Bosnia and Bosnian blood. Yet no former UN or other international official has been prosecuted by the ICTY or any other court for complicity in genocide or war-crimes. That is a real scandal of selective justice about which Harland has nothing to say.

The judgment of the Appeal Chamber, presided over by the eminent lawyer and Tribunal President Theodor Meron, to quash on all counts the first instance convictions handed down against two Croatian military commanders in connection with the so-called ‘Operation Storm’ (August 1995) is to be welcomed all round. This decision helps to repair the damage done to the Court’s reputation by the first instance judgment. Western agencies and media have generally reported this ruling as ‘surprising’. It is not; it is absolutely sound, as anyone will agree after rapidly reading through the summary of the judgment.

The five-member Appeal Chamber panel unanimously agreed that the Court had erred in its original conclusion that the attack on four towns in the area controlled by the Serb rebels was unlawful. The premise on which this finding was based was the Trial Chamber’s application of a principle which deemed all shots landing more than 200 metres from the target to be unlawful artillery attacks; the Trial Chamber’s conclusions gave no explanation for the adoption of this principle, the previously unknown ‘200 Metre Standard’. ‘The Trial Judgement contains no indication that any evidence considered by the Trial Chamber suggested a 200-metre margin of error, and it is devoid of any specific reasoning as to how the Trial Chamber derived this margin of error’. Because all of the Court’s other findings were dependent on this finding, now proved incorrect, they were set aside by the majority at Appeal Chamber, two members dissenting. Since as a consequence there was no unlawful attack against the four towns, the Trial Chamber’s judgment that the Serb population were deported must fall.

The verdict of the Trial Chamber presided over by the Dutch lawyer Alphons Orie, handed down on 14 April 2011, was wrong and its finding of guilt absurd; highly so, even, the terse summary of the Appeal Chamber’s conclusion would suggest. The verdict had to be quashed because the good name of the International Tribunal would have been damaged beyond repair and along with it the reputation of a Court which has achieved historic advances in the field of international criminal law as a result of the investigations it has carried out since 1995, numerous soundly-crafted verdicts and important ground-breaking decisions. The prattling, ill informed international media may not have realised that the outstanding lawyer that Meron is, was unwilling to jeopardise his own reputation, his judicial prestige and his moral integrity by allowing such a defective judicial finding to stand unchallenged.

Some events during the trial and the evaluations of the Trial Chamber

Many negative reactions to the Appeal Chamber’s decision suggest that the critics were not aware of what was really happening at the trial against the three accused Croatian commander, nor did they look into the original verdict of the Trial Chamber with due commitment. According to this verdict, i.e. after a close reading of the full text of it, the Trial Chamber points to no satisfactory proof for the allegations made by the prosecution. The alleged criminal cases are extremely contradictory. One example is the case of the death of a Mrs Stegnajic, who was found dead in a well by her husband. UNCIVPOL and Jacques Morneau, the Battalion Commander of Canbat who testified at the Court, had found on the spot that it was a suicide. The Trial Chamber inferred from the ‘relevant evidence with regard to the alleged murder of Ljubica Stegnajic’ that it ‘does not allow for a conclusion that Ljubica Stegnajic was killed’. So the Court establishes that this was not the alleged murder and that ‘the Trial Chamber will not further consider this incident in relation to Count 1 of the Indictment.’ But there is more to the story. In mid-August 1995, Mrs Stegnajic remained alone in her house in Benkovac because her husband had been compelled to leave home by some marauding troops; he told the staff of the Canadian camp that ‘two Croatians, dressed in civilian clothing, with long hair, carrying AK-47 rifles, had come to his house and told him to go away’. It is difficult to understand why the Trial Chamber was discussing this case in extenso in the first place. And even less understandable is the Chamber’s relying on this case of indeed appalling harassment of civilians as a ‘finding’ of ‘deportation and forcible transfer’ of Serb population committed by the accused.

This example may serve as a demonstration of the Chamber’s method: where there was no proof, the Chamber invented constructions as ‘findings’: the prosecution did not prove the alleged unlawful artillery attacks, so the Chamber invented the 200-Metre Standard. Another curious invention by the Trial Chamber is the ‘whole towns’ theory. In the indictment, the prosecutors interpreted Gotovina’s orders to put the towns of Knin, Benkovac, Obrovac, and Gračac under artillery fire as a strategy ‘to treat whole towns as targets’ concocted by ‘members of the Croatian political and military leadership’. This is in open contradiction to the orders of the Croatian president from the same minutes the prosecutor was using, albeit skipping the passage stating that all targets should be precisely defined – every spot, direction and line. The Trial Chamber disregarded this; it dismissed the testimony of the Croatian artillery officer Marko Rajcic, involved in implementing that order, concerning ‘previously selected targets with specific coordinates in these towns’ to be ‘put under constant disruptive artillery fire’ because it deemed this testimony to contradict their conclusion about the disproportionate attack on Knin. This conclusion was drawn on the basis of the testimony by expert Harry Konings, whose expertise was disputed at the trial; the Trial Chamber was ready ‘to accept certain parts of witness’s testimony while rejecting others’. So it accepted the expert’s sagacious opinion that ‘firing twelve shells at Martic’s apartment’, had ‘created a significant risk of a high number of civilian casualties and injuries, as well as of damage to civilian objects’ because ‘civilians could have reasonably been expected to be present on the streets of Knin near Martic’s apartment and in the area’ (emphasis added). Such purely hypothetical inferences are highly characteristic of the Chamber’s argumentation. Since the hypothetical ‘significant risk’ that could have caused civilian casualties was enough to diagnose ‘deliberate firing at areas in Knin’, the Chamber was not troubled by any doubt when it declared this ‘finding’ ‘inconsistent with Rajcic’s explanation of the HV artillery orders’.

The Chamber repeated its mantra of ‘whole towns’ over and over again, but lacking proof on the ground, it turned to synonymy like ‘towns as such’, ‘towns themselves’ or ‘on the whole’. This did not help much, and resulted in peculiar formulations such as: ‘the Trial Chamber considers that even a small number of artillery projectiles can have great effects on nearby civilians’ (emphasis added). There are numerous episodes of the same type in the verdict; it would take hundreds of pages to discuss all of the cases of faulty conclusions.

There is one additional matter I would like to address. Apart from the dubious 200-metre standard, the Chamber deemed the panic among the civilians caused by the use of artillery to serve as proof of the criminal responsibility of the accused basing it on the expert’s Konings evaluations: ‘Expert Konings also testified generally about the harassing and frightening effect the use of artillery can have on civilians, causing fear, panic, and disorder’ (emphasis added). So the Chamber had classified Konings testimony as credible although it had heard that this expert equalized without turning a hair the shelling of Knin (which lasted a few hours) with the shelling of Sarajevo (which lasted over three years). The Chamber heard together with everybody who was present at the hearing – through whatever means – that Konings lost his temper, raging against at in that moment actual Israeli artillery shelling against Hamas in the Gaza strip, that he regarded as an assault on civilians. All quotes above originate from the transcripts of the Tribunal. This outrage of the expert Konings (a fellow countryman of the presiding judge Orie) against Israel’s behaviour in the Gaza Strip in 2009, is not documented in the transcripts. It has been, I assume, ‘redacted’; I heard it by chance through the session’s broadcast. But this ‘incident’ alone should have been ground enough to put the expert’s credibility in question. In fact, it can be seen as the substantiation of his incompetence as an expert in this field. Prior to that, he was incapable of understanding that the order to shell a ‘catholic church’ meant the police station of the Serb rebels and not a place of worship. This St Ante monastery at Knin was seized by the Serb-rebel special police and everybody but the expert of the prosecution would classify it, i.e. the VRSK special police headquarters where the counter assaults were still being planned and coordinated, as a legal target for the HV’s artillery shelling, as in fact the Chamber has done too. This expert played the central role in the passing of the sentence of imprisonment for Gotovina and Markac, though he was not helpful for defining the 200 metre margin.

This short review may perhaps help to explain the reasons behind the Appeal Chamber’s decision. It has been outlined from the layman’s standpoint and meant to address the general public in order to explain the evident shortcomings of the original sentence by Trial Chamber.

A proposal for critics of the Appeals Chamber’s judgment

Against this background, the decision of the Appeal Chamber can be better understood. Also, the very wise decision to take the touchstone, the ‘200-Metre Standard’, of the Trial Chamber’s argumentations as a guiding principle for its revocation might be better understood. It was a shrewd method to reduce the complexity. The Appeal Chamber’s judgment resembles an elegant mathematical formula. This might well be one reason why it is encountered with such a lot of misapprehension.

Since the five judges disagreed heavily concerning other question, this was the one finding that they reached unanimously: ‘The Appeals Chamber unanimously holds that the Trial Chamber erred in deriving the 200 Metre Standard’. It is perfectly clear why this unanimity was inevitable: ‘the Trial Chamber adopted a margin of error that was not linked to any evidence it received’ (emphasis added). About such an error of judgment there can be no disagreement. Also it is not just a formalistic pettiness as some critics tend to think. It was the Trial Chamber that made the unlawful artillery attacks crucial to its verdict and it was the Trial Chamber that pinned all charges to the alleged unlawfulness of the artillery attacks based on its impact analysis. Since the evidence it had received through the prosecution was not sufficient, the Chamber constructed its one standard of impact error for which it had received no evidence at all.

The Trial Chamber itself already rejected a big part of the prosecution’s allegations about forcible expulsion, or in the words of the Appeal Chamber, it ‘declined to characterise as deportation civilians’ departures from settlements targeted by artillery attacks which the Trial Chamber did not characterise as unlawful’. Since the Appeal Chamber has quashed the finding about the unlawful artillery attacks in its entirety, it consequently infers: ‘Absent the finding of unlawful artillery attacks and resulting displacement, the Trial Chamber’s conclusion that the common purpose crimes of deportation, forcible transfer, and related persecution took place cannot be sustained’.(96)

The Appeals Chamber refers to the Trial Chamber’s conclusions as ‘mutually-reinforcing findings’; if we take the diplomatic aspects of this formulation away, one would speak rather of circular conclusions. Essentially, the Trial Chamber declared the Croatian war council to be a session of JCE (joint criminal enterprise) because it concluded that there were ‘unlawful artillery attacks’ taking place in four towns, and it pronounced these attacks to be unlawful because they were designed by the JCE to force the transfer of Serb civilians. Such conclusions are not valid. So the Appeal Chamber concludes: ‘The Brioni Transcript includes no evidence that an explicit order was given to commence unlawful attacks, and Gotovina’s statement regarding a strike on Knin could be interpreted as a description of HV capabilities rather than its aims, especially in the context of general planning for Operation Storm which took place at the Brioni Meeting’. This means, of course, that the Trial Chamber didn’t have any evidence either. But it wanted to have a sentencing verdict and I suppose it is not too intrepid to guess that this had motivated the Trial Chamber to drawing invalid (circular) conclusions; to inventing unsound impact margin standards; to dropping the evaluation of the expert testimony from a retired general familiar with the responsibilities of military commanders, which was directly relevant for weighing Gotovina’s effort concerning the disciplinary measures (AT 132-134); and also to expressing itself more in a lyrical than in a judicial manner by stating that ‘within days of the discussion at Brioni, Gotovina’s words became a reality’.

One can now presume that the dissenting two judges in the Appeal Chamber shared such attitudes and that they met the plea by the prosecutor Brady, who said at appeals hearing 14.05. 2012: ‘Instead, just as the Trial Chamber did, this Chamber needs to take a holistic view based on all the evidence considered together and not examine the facts and the evidence in this deconstructed in an artificial way and today in this afternoon’s submission, what I would like to do is to put this picture, the evidence and the facts, back together again, as they were properly understood by the Trial Chamber’. (p. 167) The two dissenting judges might have taken ‘a holistic view’ disregarding the conclusive evidence put forth by the other three judges who obviously declined the advice ‘not [to] examine the facts and the evidence’. But what, in fact, is ‘a holistic view’? It’s an overall interpretation of the events and in this case it is the prosecutor’s completely flawed interpretation.

Some critics are arguing that if one takes the Trial Chamber and Appeal Chamber together, then five judges were for the sentencing judgment, so eventually the majority. This really cannot be accepted as a valid argument. But the question that ought to be put is why some judges at an international law court prefer holistic interpretation of events rather than conclusive evidence. I think that this has to do with the ambiguous character of the court established by the Security Council under the name ICTY.

The ambivalent concept of the ICTY

Founding the ICTY through the Security Council in 1993, its members followed the principles of international law as established since the Nuremberg trials, but they adopted the Charter selectively. This problem can be put aside here, but what is relevant in this context is that they were under the influence of the worldwide discourse concerning the dissolution of the Socialist Federative Republic of Yugoslavia and the subsequent wars. The outstanding feature of this discourse was its ethnicistic character. I can outline this problem only very roughly. Putting ethnicity in the foreground corrupts the whole complicated issue. This ethnicistic perception shows itself already in the denotation of the Court as the tribunal for the former Yugoslavia – a name that in every sense is wrong. It refers to the Yugoslav nations instead of to the political background of the war. So it suggests that the war that took place in that region was an ethnic or civil war. So gradually the idea emerged that all, or at least most of, the peoples were somehow engaged in the war or some ethnic conflict.

The prosecutors seemed to be getting nervous that they will have to issue charges only against the Serbs and thought obviously that they had to balance this out. But there is nothing to balance out; what should have been done was to take in account that nobody is charged because of her or his nationality but because of war crimes. The nationality of the accused is of secondary importance. Instead of changing its perspective, the prosecution tried to change the reality by issuing indictments against accused from other national groups. But it was also the error of the Court to pass such indictments, for example against Macedonian officials, as a matter of war crimes. It is a big difference if one writes ‘Seven convicted for the massacre of Srebrenica’ as opposed to ‘the Serbs perpetrated an act of genocide at Srebrenica in July 1995’ (cf. Ian Traynor, ’Croatia’s “war crime” is no longer a crime after UN tribunal verdict’, guardian.co.uk, Friday 16 November 2012). ‘The Serbs’ didn’t perpetrate any act of genocide and there is no formulation in the Court’s documents that would justify such reckless language. A war-crimes tribunal should be the place where this supercilious ethnicistic treatment of the conflict and the war finds its end. What counts at the Court, is the crime and not the nationality of the accused. In most cases, the judges of the ICTY did their job well, as did lawyers in the prosecutions regarding the Kosovo, Sarajevo and Srebrenica cases; partially also in the Vukovar case. It is the dimension of the crime that was in focus and not the nationality of the indicted. So in respect of the mentioned seven sentenced in the 2nd ‘Srebrenica Trial’ on 10 June 2010 – trial judgment pending appeal for six of the accused – the Chamber’s findings differentiate the grades of responsibility of the accused and convicted two of them (Ljubisa Beara and Vujadin Popovic) of genocide, extermination, murder and persecutions. Not even in the slovenly and tendentious indictment against Gotovina et al. was such a formulation as ‘Croatia’s ‘war crime’’ used. Instead the prosecutor writes in the final brief: ‘Now it should be noted first that no one is alleging that Croatia had a plan or policy to expel. It was the members of the JCE’ (T. 29025).

But referring to the case also by ‘Oluja’ created confusion, and this case was (mis)understood as a trial about the operation named ‘Storm’; since this endeavour was legal it cannot and it is not going to be put to any trial. This also has to do with irresponsible language. The gap between the sentenced perpetrators in relation to their nationality has causes that are not ethnic. It is the completely diverging characters of the warring parties; the party that was waging war and that was engaged in vast battlefields was carrying out its campaigns in a fundamentally different manner than the parties in resistance to this crusade. The scope of crimes done by the main belligerent with the headquarters in Belgrade cannot be balanced out by dubious indictments against commanders and leaders of the resistance parties, such as the recently acquitted Ramush Haradinaj. Though the court in The Hague was cautious in its language, in practice it givee in to the ethnicistic politics of balancing the national groups of the accused, with the disastrous consequence that now the sentenced war criminals are being counted according their nationality.

Now Zdravko ‘Tolimir was found guilty by the Majority of Trial Chamber II, Judge Nyambe dissenting, of genocide, conspiracy to commit genocide, murder as a violation of the laws or customs of war, as well as extermination, persecutions, inhumane acts through forcible transfer and murder as crimes against humanity’ (Press Release, The Hague, 12 December 2012). He was convicted because of the conclusive evidence of his criminal responsibility as the ‘right hand’ of Ratko Mladic – but not as a Serb.

About

A blog devoted to political commentary and analysis, with a particular focus on South East Europe. Born in 1972, I have been studying the history of the former Yugoslavia since 1993, and am intimately acquainted with, and emotionally attached to, the lands and peoples of Croatia, Bosnia-Hercegovina and Serbia. In the summer of 1995, I acted as translator for the aid convoy to the Bosnian town of Tuzla, organised by Workers Aid, a movement of solidarity in support of the Bosnian people. In 1997-1998 I lived and worked in Sarajevo, Bosnia-Hercegovina. In 1998-2001 I lived and worked in Belgrade, Serbia, and was resident there during the Kosovo War of 1999. As a journalist, I covered the fall of Milosevic in 2000. I worked as a Research Officer for the International Criminal Tribunal for the former Yugoslavia in 2001, and participated in the drafting of the indictment of Slobodan Milosevic.

I received my BA from the University of Cambridge in 1994 and my PhD from Yale University in 2000. I was a Postdoctoral Research Fellow of the British Academy in 2001-2004, a member of the Faculty of History of the University of Cambridge in 2001-2006, an Associate Professor at Kingston University in 2006-2017, and am currently an Associate Professor at the Department of Political Science and International Relations of the Sarajevo School of Science and Technology, affiliated with the University of Buckingham. This blog was launched while I was living in Surbiton in the UK. I am based in Sarajevo and London.